UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

) VIACOMEDY COM INTERNATIONAL PARTNERS, INC., )) COUNTRY MUSIC TELEVISION, INC., ) PARAMOUNT PICTURES CORPORATION, ) liC,and BLACK ENTERTAINMENT TELEVISION) ) ) Plaintiffs, ) Case No. 1:07-cv-02103 (LLS) v. ) (Related Case NO.1 :07-cv-03582 (LLS) ) ECF Case YOUTUBE INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) ) )

VIACOM'S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY AND INAPPLICABILITY OF THE DIGITAL MILLENNIUM COPYRIGHT ACT SAFE HARBOR DEFENSE

Stuart J. Baskin (No. SB-9936) Paul M. Smith (No. PS-2362) John Guelì (No. JG-8427) Willam M. Hohengarten (No. WH-5233) Kirsten Nelson Cunha (No. KN-0283) Scott B. Wilkens (pro hac vice) SHEARMAN & STERLING LLP Matthew S. Hellman (pro hac vice) 599 Lexington Avenue JENNER & BLOCK LLP New York, NY 10022 1099 New Y ork Avenue, NW Telephone: (212) 848-4000 Washington, DC 20001 Facsimile: (212) 848-7179 Telephone: (202) 639-6000 Facsimile: (202) 639-6066

Susan 1. Kohlmann (No. SK-1855) JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 891-1690 Facsimile: (212) 891-1699 March 18,2010 Attorneysfor PlainttfJ TABLE OF CONTENTS

i. VIACOM'S OWNERSHIP OF THE WORKS IN SUIT ...... 1

II. INFRINGEMENT OF THE WORKS IN SUIT ON YOUTUBE ...... 2

II. DEFENDANTS' KNOWLEDGE AND INTENT CONCERNING INFRINGEMENT ON YOUTUBE...... 2

A. The YouTube Founders' Knowledge and Intent Concerning Infringement on YouTube ...... 2

B. Google's Knowledge and Intent Concerning Infringement on YouTube...... 31

IV. DEFENDANTS' DIRECT FINANCIAL BENEFIT FROM INFRINGEMENT ...... 53

V. DEFENDANTS' RIGHT AND ABILITY TO CONTROL INFRINGEMENT...... 62

VI. DEFENDANTS' CONDUCT AS DIRECT INFRINGEMENT AND AS BEYOND STORAGE AT THE DIRECTION OF A USER ...... 75 LEGEND

For the purposes of Via com's Statement of Undisputed Facts in Support ofIts Motion for

Partial Summary Judgment on Liabilìty and Inapplicabilìty of the Digital Millennium Copyright

Act Safe Harbor Defense, the following abbreviations shall be used:

"Hohengarten DecL." shall refer to the declaration ofWì1iam M. Hohengarten, dated

March 5, 2010, filed herewith.

"Hohengarten i1_ & Ex. _," shall refer to the paragraphs of the Hohengarten

Declaration and the Exhibits attached thereto, respectively. Any Exhibit attached to the

Hohengarten Declaration that was produced during the course of this litigation and marked with

Bates numbers is identified by its beginning Bates number, followed by a pinpoint citation.

Pinpoint citations shall refer to the page number(s), and paragraph or line numbers, of the cited document. In some instances Hohengarten Declaration Exhibits have been manually paginated for ease of the Court's reference. Where used, parentheticals indicate the nature of the item cited

- e.g., deposition transcripts ("Dep.") or other declarations ("DecL."). Thus, by way of illustration, "Hohengarten i17 & Ex. 4, G00001-00011355, at G00001-00011356" would refer to Exhibit 4 to the Hohengarten Declaration, which has the beginning Bates number GOOOO 1-

00011355, and would refer specifically to the page of that Exhibit marked with Bates number

G00001-00011356. And, "Hohengarten i1366 & Ex. 332 (Eun Dep.) at 200:1-10" would refer to the deposition of Google employee David Eun, which is referenced at Paragraph 366 of and attached as Exhibit 332 to the Hohengarten Declaration.

"Solow Decl." shall refer to the declaration of Warren Solow, a representative of Via com, dated March 3, 2010, filed herewith. The Solow Declaration is attached as Exhibit 2 to the

Hohengarten Declaration.

11 "SUF i1" shall refer to specific paragraph numbers in Viacom's Statement of Undisputed

Facts.

II Pursuant to Local Civil Rule 56.1, Viacom submits the following Statement of

Undisputed Facts in Support ofIts Motion for Partial Summary Judgment on Liabilìty and

Inapplìcabilìty of the Digital Mì1ennium Copyright Act Safe Harbor Defense.

UNDISPUTED FACTS i. VIACOM'S OWNERSHIP OF THE WORKS IN SUIT

T" ., iTT.". , ~ 1. Viacom creates and acquires exclusive Hohengarten Dec1. i13 & Ex. 2 (Solow rights in copyrighted audiovisual works, Dec1. i12). including motion pictures and television programming.

2. Viacom distributes its copyrighted Hohengarten Dec1. i13 & Ex. 2 (Solow television programs and motion pictures Dec1. i13). through various outlets, including cable and satellite services, movie theaters, home entertainment products (such as DVDs and Blu-Ray discs) and digital platfonns.

3. Viacom owns many of the world's best Hohengarten Dec1. i13 & Ex. 2 (Solow known entertainment brands, including Dec1. i14). Paramount Pictures, MTV, BET, VH1, CMT, Nickelodeon, Comedy Central, and SpikeTV.

4. Viacom's thousands of copyrighted works Hohengarten Dec1. '1 3 & Ex. 2 (Solow include the following famous movies: Dec1. i15). Braveheart, Gladiator, The Godfather,

Forrest Gump, Raiders of the Lost Ark, Breakfast at Tifany's, Top Gun, Grease, Iron Man, and Star Trek.

5. Viacom's thousands of copyrighted works Hohengarten Dec1. i13 & Ex. 2 (Solow include the following famous television Dec1. i16). shows: The Daily Show with Jon Stewart, The Colbert Report, South Park, Chappelle's Show, Spongebob Squarepants, The Hils, iCarly, and Dora the Explorer.

6. Viacom owns or controls the copyrights or Hohengarten Dec1. i13 & Ex. 2 (Solow exclusive rights under copyright in the Decl. iiii 7 -14, 17). 3,085 audiovisual works identified in Exhibits A-E to the Solow Dec1. filed herewith ("Works in Suit").

II. INFRINGEMENT OF THE WORKS IN SUIT ON YOUTUBE

IT'.'. ,. "--' -F 7. Defendants have reproduced and distributed Hohengarten Dec1. i13 & Ex. 2 (Solow for viewing, and performed on the Dec1. i1i116-26). Y ouTube website, 62,637 video clìps that infringe the Works in Suit ("Clìps in Suit"); the Clìps in Suit are identified in Attachment F to the Solow Dec1. filed herewith.

8. The Clips in Suit were collectively viewed Hohengarten Dec1. i14. on the Y ouTube website more than 507 mì1ion times.

9. Viacom has not authorized the distribution Hohengarten Decl. i13 & Ex. 2 (Solow or reproduction or performance of the Clìps Dec1. i126). in Suit on Defendants' YouTube.com service.

III. DEFENDANTS' KNOWLEDGE AND INTENT CONCERNING INFRINGEMENT ON YOUTUBE

A. The YouTube Founders' Knowledge and Intent Concerning Infringement on YouTube

10. YouTube was founded in February 2005 by Hohengarten i1393 & Ex. 356 (January 5, Chad Hurley, Steve Chen, and Jawed 2007 Declaration of Steve Chen in Karim. Support of (Y ouTube' s J Motion for Summary Adjudication of (Y ouTube' s J First Affnnative Defense of DMCA Safe Harbor, Robert Tur v. You Tube, Inc., Case No. CV 06-4436 FMC) ("declaration of Steve Chen dated January 5, 2007") at i12.

2 Hohengarten i1346 & Ex. 312 (C. Hurley Dep.) at 12:21-13:7.

11. Prior to founding YouTube, Chad Hurley, Hohengarten i1222 & Ex. 204, Steve Chen, and Jawed Karim worked JK00009887, at JK00009890-91. together at the Internet start-up PayPa1. Hohengarten i1346 & Ex. 312 (c. Hurley Dep.) at 16:20-17:16).

Hohengarten i1402 & Ex. 365.

Hohengarten i1347 & Ex. 313 (Karim Dep.) at 8:24-9:14,16:3-16:23.

12. When eBay acquired PayPal for $ 1.5 billìon Hohengarten i16 & Ex. 3, G00001- in 2002, PayPal's stockholders, including 00303096, at G00001-00303100. _ Chad Hurley, Steve Chen, and _, received Hohengarten i1346 & Ex. 312 (C. Hurley substantial profits from the dea1. Dep.) at 19:11-21:12.

13. The YouTube website first became publicly Hohengarten i1393 & Ex. 356 (declaration

accessible in a "beta" version in April 2005. of Steve Chen dated January 5,2007) at i1 3.

Hohengarten i17 & Ex. 4, G00001- 00011355, G00001-00011357.

14. YouTube publìcized the "official launch" of Hohengarten'1 307 & Ex. 279 (YouTube the YouTube website in December 2005. page entitled "YouTube Company History").

15. A December 15, 2005 YouTube press Hohengarten i1299 & Ex. 271 (YouTube release described Y ouTube as a "consumer press release dated December 15, 2005). media company" that "delìver( s J entertaining, authentic and infonnative videos across the Internet."

16. On October 9,2006, Google announced its Hohengarten i1304 & Ex. 276 (Google agreement with Y ouTube for Google to press release dated October 9,2006). acquire YouTube for $1.65 billion in Google stock.

17. Google's acquisition of You Tube closed on Hohengarten i1305 & Ex. 277 (Google

3 November 13, 2006. press release dated November 13, 2006).

Hohengarten i1366 & Ex. 332 (Eun Dep.) at 58:3-14.

18. In connection with the acquisition, Google Hohengarten i1305 & Ex. 277 (Google issued an aggregate of 3 ,217,560 shares, press release dated November 13, 2006). and restricted stock units, options and a warrant exercisable for or convertible into an aggregate of 442,21 0 shares, of Google Class A common stock.

19. On November 13, 2006, the closing date of Hohengarten i1306 & Ex. 278 (screenshot

the transaction, Google Class A common of Go ogle's finance webpage showing that stock closed at a price of $481.03; at that the closing price for Google shares on price, the 3,659,770 shares issued and November 13, 2006 was $481.03). issuable in connection with Google's

acquisition of You Tube were worth an aggregate $1.77 billion.

20. 12.5 percent of the equity issued and Hohengarten i1305 & Ex. 277 (Google issuable pursuant to Google's acquisition of press release dated November 13,2006). Y ouTube was placed in escrow to secure indemnification oblìgations.

21. As a result of Go ogle's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube co-founder Chad Inc., S-3ASR Registration Statement dated Hurley received Google shares worth February 7,2007)) at 5 (page numbers at approximately $334 mì1ion at the bottom center) (showing 694,087 issued to November 13, 2006 closing price. Chad Hurley).

Hohengarten i1306 & Ex. 278 (screenshot

of Go ogle's finance webpage showing that the closing price for Google shares on November 13, 2006 was $481.03).

Hohengarten i1346 & Ex. 312 (c. Hurley Dep.) at 22:8-18 (stating that as a result of

the sale of You Tube to Google his net worth increased by around $300 million).

22. As a result of Google's acquisition of Hohengarten i1400 & Ex. 363 (Google YouTube, YouTube co-founder Steve Chen Inc., S-3ASR Registration Statement received Google shares worth (February 7,2007)) at 5 (page numbers at approximately $301 mì1ion at the bottom center) (showing 625,366 issued to November 13,2006 closing price. Steve Chen).

4 Hohengarten i1306 & Ex. 278 (screenshot

of Go ogle's finance webpage showing that the closing price for Google shares on November 13, 2006 was $481.03).

23. As a result of Google's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube co- founder Jawed Inc., S-3ASR Registration Statement Karim received Google shares worth (February 7,2007)) at 5 (page numbers at approximately $66 mì1ion at the November bottom center) (showing 137,443 issued to 13,2006 closing price. Jawed Karim).

Hohengarten i1306 & Ex. 278 (screenshot

of Google's finance webpage showing that the closing price for Google shares on November 13,2006 was $481.03).

Hohengarten i1347 & Ex. 313 (Karim Dep.) at 106:20-107:8 (

24. As a result of Google's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Sequoia Capital, the largest Inc., S-3ASR Registration Statement dated venture capital investor in Y ouTube, February 7,2007)) at 6, 10 (page numbers received Google shares worth at bottom center) (showing 941,027 shares approximately $516 million at the issued to Sequoia Capital XI, L.P.; November 13, 2006 closing price. 102,376 shares issued to Sequoia Capital XI Principals Fund; and 29,724 shares issued to Sequoia Technology Partners XI).

Hohengarten i1306 & Ex. 278 (screenshot

of Go ogle's finance webpage showing that the closing price for Google shares on November 13, 2006 was $481.03).

25. Sequoia Capital invested approximately $9 Hohengarten i1329 & Ex. 297, SC0087L1, mì1ion in Y ouTube in late 2005 and early at SC008781 (showing that Sequoia 2006. Capital invested $4.99 million in Series B financing).

Hohengarten i1328 & Ex. 296, SC008403, at SC008470-71 (showing approximately $3.4 mì1ion invested in cash and over $100,000 invested as debt conversion in

5 Series A financing).

Hohengarten i13 51 & Ex. 317 (Botha Dep.) at 53:20-54:5; 137:15-24.

26. As a result of Google's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Artis Capital, another venture Inc., S-3ASR Registration Statement dated capital investor in Y ouTube, received February 7,2007)) at 5 (page numbers at Google shares worth approximately $85 bottom center) (showing 176,621 shares million at the November 13,2006 closing issued to Artis Capital entities). pnce. Hohengarten i1306 & Ex. 278 (screenshot

of Go ogle's finance webpage showing that the closing price for Google shares on November 13,2006 was $481.03).

27. Artis Capital invested approximately $3 Hohengarten i1329 & Ex. 297, SC008711, mì1ion in Y ouTube in early 2006. at SC008781-83 (showing that Artis Capital invested $3 mì1ion in Series B financing).

28. "As of December 31,2006," Google's Hohengarten i1303 & Ex. 275 (Google "cash, cash equivalents, and marketable Investor Relations page announcing securities were $11.2 billion." Fourth Quarter and Fiscal Year 2006 Results).

6 29. In a February 11, 2005 email to YouTube co- Hohengarten i18 & Ex. 5, G00001- founders Chad Hurley and Steve Chen, with 02757578, at G00001-02757578. the subject "aiming high," Y ouTube co- founder Jawed Karim wrote that, in terms of "the number of users and popularity," he wanted to "finnl y place (Y ouTube J among" "napster," "kazaa," and "bittorrent."

30. In an April 23, 2005 email to YouTube co- Hohengarten i1223 & Ex. 205, founders Steve Chen and Chad Hurley, JK0000913 7, at JK0000913 7. Y ouTube co-founder Jawed Karim wrote: "It's all 'bout da videos, yo. We'll be an excellent acquisition target once we're huge."

31. In an April 25, 2005 email to Y ouTube co- Hohengarten i1224 & Ex. 206, founders Steve Chen and Jawed Karim, JK00004704, at JK00004704. YouTube co-founder Chad Hurley noted the presence of a "South Park" clip on Y ouTube and questioned whether it should be left on the site because "its (sic J copyrighted materiaL."

32. YouTube's content review manager Heather Hohengarten i1368 & Ex. 334 (Gì1ette Gillette testified that early in Y ouTube' s Dep.) at 7:22-9:20,46:20-47:24. existence "South Park" was "the content that appeared to be most popular and shared at that Hohengarten i1400 & Ex. 363 (Google stage that we suspected could be Inc., S-3ASR Registration Statement unauthorized. " (February 7,2007)) at 16 (page numbers at bottom center) (stating Heather Gillette's job title).

33. In a June 15,2005 email to YouTube co- Hohengarten i1225 & Ex. 207, founders Chad Hurley and Y ouTube co- JK00005039, at JK00005039. founder Jawed Karim, Y ouTube co- founder Steve Chen stated "we got a complaint from someone that we were violating their user agreement. i *think* it may be because we're hosting copyrighted content. instead of taking it down - i'm not about to take down content because our ISP is giving us shit - we should just investigate moving www.youtube.com...

7 34. In a June 15, 2005 email to YouTube co- Hohengarten i1226 & Ex. 208, founders Steve Chen and Jawed Karim, JK00005043, at JKOOO05043. YouTube co-founders Chad Hurley stated: "so, a way to avoid the copyright bastards might be to remove the 'No copyrighted or obscene material' lìne and let the users moderate the videos themselves. legally, this wì1 probably be better for us, as we'll make the case we can review all videos and tell them if they're concerned they have the tools to do it themselves."

35. In a June 20, 2005 email to Y ouTube co- Hohengarten i1228 & Ex. 210, founders Chad Hurley and Steve Chen, JK00009383, at JKOOO09383. Y ouTube co-founder Jawed Karim wrote: "If we want to sign up lots of users who keep coming back, we have to target the people who wì1 never upload a video in their lìfe. And those are really valuable because they spend time watching. And if they watch, then

it's just lìke TV, which means lots of value."

36. On June 21,2005, YouTube co-founder Jawed Hohengarten i1227 & Ex. 209, Karim stated in an email to Y ouTube co- JK000093 81, at JKOOO09381. founders Chad Hurley and Steve Chen that "Where our value comes in is USERS. ... (OJur buy-out value is positively affected by . . . more Y outube users. . . . The only thing we have control over is users. We must build

features that sign up tons of users, and keep them coming back."

37. On July 4,2005, YouTube co-founder Chad Hohengarten i1229 & Ex. 211, Hurley sent an email to YouTube co-founders JK00005928, at JKOOO05928. Steve Chen and Jawed Karim titled "budlight commercials," stating "we need to reject these Hohengarten i1230 & Ex. 212, too"; Steve Chen responded by asking to JK00005929, at JKOOO05929. "leave these in a bit longer? another week or two can't hurt;" Jawed Karim subsequently stated that he "added back all 28 bud videos. stupid. . .," and Steve Chen replìed: "okay first, regardless of the video they upload, people are going to be telling people about the site, therefore making it viraL. they're going to drive traffic. second, it adds more content to the site. third, we're going to be adding advertisements in the future so this gets them

8 used to it. I'm asking for a couple more weeks."

38. In a July 10, 2005 email to Y ouTube co- Hohengarten i1231 & Ex. 213, founders Chad Hurley and Steve Chen, JK00006057, at JKOOO06057. YouTube co-founder Jawed Karim reported that he had found a "copyright video" and stated: "Ordinarily I'd say reject it, but I agree with Steve, let's ease up on our strict polìcies for now. So let's just leave copyrighted stuff there if it' s news clips. I still think we should reject some other (C) things tho. . ."; Chad Hurley replìed, "ok man, save your meal money for some lawsuits! ;) no really, I guess we'll just see what happens."

39. In a July 10, 2005 email to Y ouTube co- Hohengarten i1234 & Ex. 216, founders Jawed Karim and Steve Chen, JK00006055, at JKOOO06055. YouTube co-founder Chad Hurley wrote: "yup, we need views. I'm a little concerned with the recent supreme court rulìng on copyrighted material though."

40. In a July 19, 2005 email to YouTube co- Hohengarten i123 5 & Ex. 217, founders Chad Hurley and Jawed Karim, JK00006166, at JKOOO06166. YouTube co-founder Steve Chen wrote: "jawed, please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not lìable for the copyrighted material on the site because we

didn't put it up when one of the co-founders is blatantly stealìng content from other sites and trying to get everyone to see it."

41. On July 19, 2005, YouTube co-founder Steve Hohengarten i1236 & Ex. 218, Chen sent an email to Y ouTube co-founder JK00009595, at JKOOO09595. Jawed Karim, copying YouTube co-founder Chad Hurley, stating "why don't i just put up

20 videos of pornography and obviously copyrighted materials and then lìnk them from the front page. what were you thinking."

42. On July 22, 2005, YouTube co-founder Steve Hohengarten ii 239 & Ex. 221, Chen forwarded to all Y ouTube employees a JK00006259, at JKOOO06266, "YouTube Marketing Analysis" stating that JKOOO06268. "users not only upload their own work, but can potentially upload publìcly available

9 content for viewing. Risk area here is copyright as many videos which are uploaded are not the property of the uploader. . . . Although the polìcy when uploading states that the video must be legit, Y ouTube may be liable for any damages which copyright holders may press."

43. In a July 23, 2005 email to YouTube co- Hohengarten i1240 & Ex. 222, founders Steve Chen and Jawed Karim, JK00009668, at JKOOO09668. Y ouTube co-founder Chad Hurley responded to a Y ouTube lìnk sent by Jawed Karim by saying: "if we reject this, we need to reject all the other copyrighted ones. . . . should we just develop a flagging system for a future push?"; Karim responded: "I say we reject this one, but not the other ones. This one is totally blatant."

44. In a July 29,2005 email about competing Hohengarten i1241 & Ex. 223, video websites, YouTube co-founder Steve JK00006392, at JKOOO06392. Chen wrote to Y ouTube co-founders Chad Hurley and Jawed Karim, "steal it!", and Chad Hurley responded: "hmm, steal the movies?" Steve Chen replìed: "we have to keep in mind that we need to attract traffic. how much traffic wì1 we get from personal videos? remember, the only reason why our traffic surged was due to a video of this type. . . . viral videos wì1 tend to be THOSE type of videos."

45. In an August 1, 2005 email to all Y ouTube Hohengarten i19 & Ex. 6, GOOO01- employees, YouTube co-founder Chad Hurley 00660588, at GOOO01-00660588. stated: "This user is starting to upload tons of 'Family Guy' copyrighted clips... I think it's

time to start rejecting some of them. Any objections?"

46. In an August 9, 2005 email to Y ouTube co- Hohengarten i1242 & Ex. 224, founders Steve Chen and Jawed Karim, JK00006689, at JKOOO06689-90. YouTube co-founder Chad Hurley stated: "we need to start being diligent about rejecting copyrighted/inappropriate content. we are getting serious traffic and attention now, I don't want this to be killed by a potentially bad experience of a network exec or someone

10 visiting us. like there is a cnn clip of the shuttle clip on the site today, if the boys from Turner would come to the site, they might be pissed? these guys are the ones that wì1 buy us for big money, so lets make them happy. we can then roll a lot of this work into a flagging system soon."

4 7. In response to Y ouTube co-founder Chad Hohengarten i1242 & Ex. 224, Hurley's August 9, 2005 email (see SUF i146) JK00006689, at JK00006689. YouTube co-founder Steve Chen stated: "but we should just keep that stuff on the site. I really don't see what wì1 happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legaL. 2 weeks later, we get a cease & desist letter. we take the video down"; Chad Hurley replied: I just don't want to create a bad vibe... and perhaps give the users or the press something bad to write about."

48. On August 10,2005, YouTube co-founder Hohengarten i1242 & Ex. 224 J awed Karim responded to Y ouTube co- JK00006689, at JK00006689. founder Chad Hurley (see SUF i1 (previous para)): "lets remove stufflike movies/tv shows. lets keep short news clips for now. we can become stricter over time, just not overnight. lìke the CNN space shuttle clip, I lìke. we can remove it once we're bigger and better known, but for now that clip is fine." Steve Chen replìed, "sounds good."

49. On August 11,2005, YouTube co-founders Hohengarten i1243 & Ex. 225, Chad Hurley, Steve Chen, and Jawed Karim JK00006627, at JK00006627. met with Sequoia Capital regarding a possible investment by Sequoia Capital in Y ouTube. Hohengarten i110 & Ex. 7, G00001- 01907664, at G00001-01907664.

Hohengarten i1244 & Ex. 226 at JK00009791. 50. On August 11, 2005, outside Sequoia's offices Hohengarten i1261 & Ex. 240, in Palo Alto, YouTube co-founder Jawed JK00010387- MVI - 0922.avi. Karim asked the two other Y ouTube co- founders, as captured on video, "At what point Hohengarten i1262 & Ex. 241 (true and

would we tell them our dirty lìttle secret, correct transcript of Hohengarten Ex. which is that we actually just want to sell out 240).

11 quickly," and Chad Hurley responded, "we'll have to erase the file." Hohengarten i1346 & Ex. 312 (C. Hurley Dep.) 106:11-108:20. 51. In an August 14, 2005 email Y ouTube co- Hohengarten i1188 & Ex. 185, founder Jawed Karim reported to the two G00001-01949763, at GOOO01- other Y ouTube co-founders Chad Hurley and 01949763. Steve Chen that the three co-founders (using YouTube user names "steve," "jawed," and Hohengarten i1258 & Ex. 379, "Chad") were among the top six most active JK00004669, at JK00004669 (making viewers on Y ouTube, in terms of number of clear that Steve Chen, Jawed Karim, videos watched. and Chad Hurley used Y ouTube user names "steve," "jawed," and "chad," respectively).

52. In a September 1, 2005 email to Y ouTube co- Hohengarten i111 & Ex. 8, GOOO01- founder Steve Chen and all Y ouTube 01424049, at GOOO01-01424049. employees, Y ouTube co-founder Jawed Karim stated, "well, we SHOULD take down any: 1) movies 2) TV shows. we should KEEP: 1) news clips 2) comedy clips (Conan, Leno, etc) 3) music videos. In the future, I'd also reject these last three but not yet."

53. On September 2,2005, in response to an email Hohengarten i1245 & Ex. 227, from YouTube co-founder Chad Hurley JK00007378, at JKOOO07378. reporting that he had taken down clips of the TV show "Family Guy," YouTube co-founder Steve Chen stated: "should we just assume that a user uploading content really owns the content and is agreeing to all the terms of use? so we don't take down anything other than obscene stuff?"

54. In a September 3, 2005 email to the two other Hohengarten i1233 & Ex. 215, Y ouTube co- founders with the subject line JK00007416, at JKOOO07418. "copyrighted material! ! !", Y ouTube co- founder Chad Hurley wrote, "aaahhhhh, the See also Hohengarten i1259 & Ex. 380, site is starting to get out of control with JK00005597, at JK00005597 ("I really copyrighted materiaL. .. we are becoming want to start rejecting copyrighted another big-boys or stupidvideos." material now. . . . We are not another 'StupidVideos' or 'Bittorrent."').

55. In a September 3,2005 email responding to Hohengarten i1233 & Ex. 215, YouTube co-founder Chad Hurley's concern JK00007416, at JKOOO07417-18. that "the site is starting to get out of control with copyrighted material" (see SUF i154),

12 YouTube co-founder Steve Chen stated to the other two Y ouTube co- founders that, "what's the difference between big-boys/stupidvideos vs youtube? . . . if you look at the top videos on the site, it's all from this type of content. in a way, if you remove the potential copyright infringements, wouldn't you stì1 say these are 'personal' videos? if you define 'personal' to be videos on your personal hard drive that you want to upload and share with

people? anyway, if we do remove that stuff, site traffic and viralìty wì1 drop to maybe

20% of what it is. . . i'd hate to prematurely attack a problem and end up just losing growth due to it."

56. In response (see SUF i155), YouTube co- Hohengarten i1233 & Ex. 215, founder Jawed Karim wrote: "well I'd just JK00007416, at JK00007 417. remove the obviously copyright infringing stuff. movies and tv shows, I'd get rid of. . . .

we'll leave music videos, news clips, and clips of comedy shows for now. I think thats a pretty good polìcy for now, no?"

57. In a September 3,2005 email to the two other Hohengarten i1233 & Ex. 215, Y ouTube co- founders, Y ouTube co-founder JK00007416, at JKOOO07416. Steve Chen responded to Jawed Karim's suggestion that YouTube remove "obviously copyright infringing stuff' (see SUF i156) by stating that "i know that if (we J remove all that content. we go from 100,000 views a day down to about 20,000 views or maybe even lower. the copyright infringement stuff. i mean, we can presumably claim that we don't know who owns the rights to that video and by uploading, the user is claiming they own that video. we're protected by DMCA for that.

we'll take it down if we get a 'cease and desist"'; Jawed Karim replied: "my suggested

polìcy is really lax though. . . . if we keep that polìcy I don't think our views will decrease at alL. "

58. On September 3,2005, YouTube co-founder Hohengarten i1233 & Ex. 215, Steve Chen stated in response to Y ouTube co- JK00007416, at JKOOO074l6. founder Jawed Karim's "really lax" polìcy (see SUF i157): "yes, then i agree with you. Hohengarten i1246 & Ex. 228,

13 take down whole movies, take down entire TV JK00007420, at JKOOO07420. shows, take down XXX stuff. everything else keep including sports, commercials, news, etc. keeping it, we improve video uploads, videos viewed, and user registrations"; Chad Hurley replìed: "lets just work in that flagging feature soon. . . then we won't be lìable."

59. In a September 4, 2005 email to Y ouTube co- Hohengarten i1247 & Ex. 229, founder Jawed Karim and others at Y ouTube, JK00007423, at JKOOO07423. a Y ouTube user stated: "Jawed - You have a lot of people posting Chappelle Show clips and stufflike that. Aren't you guys worried that someone might sue you for copywrite (sic J violation like Napster?"; Karim replìed: "ahaha."

60. In a September 7, 2005 email, YouTube co- Hohengarten i1248 & Ex. 230, founder Steve Chen wrote to Y ouTube co- JK00007479, at JKOOO07479. founders Chad Hurley and Jawed Karim, and Roelof Botha of Sequoia Capital (and later a Hohengarten i13 51 & Ex. 317 (Botha Y ouTube board member) that Y ouTube had Dep.) at 8 :19-9:12 (describing Roelof "implemented a flagging system so you can Botha's position at Sequoia), 53:16- flag a video as being inappropriate or 53 :21 (describing Sequoia's investment copyrighted. That way, the perception is that in Y ouTube), 93: 19-93 :21 (identifying we are concerned about this type of material Roelof Botha as a Y ouTube board and we're actively monitoring it. The actual member). removal of this content will be in varying degrees. We may want to keep some of the borderline content on the site but just remove it from the browse/search pages. that way, you can't find the content easily. Again, similar to Flickr, . . . you can find truckloads of adult and copyrighted content. It's just that you can't stumble upon it, you have to be actively searching for it."

61. In a September 8, 2005 email to all Y ouTube Hohengarten i1260 & Ex. 381, employees with the subject line "committed JK00007560, at JKOOO07560. changes," YouTube co-founder Steve Chen wrote: "Flagging for Inappropriate/ Copyrighted Content: . . . this is hooked up now."

62. On September 12,2005, the "Official Hohengarten i1298 & Ex. 270 Y ouTube Blog" stated: "We are ecstatic to (September 12,2005 YouTube Blog announce the changes we made to the site last entry) (emphasis in original).

14 night. . .. First up, video flagging. At the bottom of the video watch page, you wì1 notice a new section for flagging a video. If you encounter a video that's inappropriate or copyrighted, please use this feature to notify us. We will aggressively monitor these submissions and respond as quickly as we can."

63. YouTube's community flagging system See supra SUF i1i161-62. originally allowed users to flag videos as copyrighted or as otherwise inappropriate, for Hohengarten i1368 & Ex. 334 (Gì1ette reasons such as sexual content or violence, by Dep.) at 94:12-96:23,148:17-150:7. clicking a button at the bottom of the video watch page and selecting the reason for the Hohengarten i13 50 & Ex. 316 (B. flagging from a menu of options supplìed by Hurley Dep.) at 191:10-192:11. YouTube.

64. On September 23,2005, YouTube co-founder Hohengarten i1250 & Ex. 232, Chad Hurley emailed YouTube co-founders JK00008043, at JKOOO08043. Steve Chen and Jawed Karim, stating: "can we remove the flagging link for 'copyrighted' today? we are starting to see complaints for

this and basically if we don't remove them we could be held lìable for being served a notice.

it's actually better if we don't have the lìnk there at all because then the copyright holder is responsible for serving us notice of the material and not the users. anyways, it would

be good if we could remove this asap."

65. On or shortly after September 23,2005, Hohengarten i1397 & Ex. 360 Y ouTube discontinued community flagging (Defendants' Amended Reponses and for copyright infringement, while retaining Objections to Plaintiffs' First Set of community flagging for inappropriate content Interrogatories, Interrogatory NO.2 (Set and other types oftenns of use violations. 1)) at 8-9.

Hohengarten i1368 & Ex. 334 (Gillette Dep.) at 94:12-97:15; 148:17-150:7 (testifying about the way a user flags a video and the manner in which YouTube's personnel review every flagged video).

Hohengarten i1376 & Ex. 342 (Levine Dep.) at 50:21-53:20,56:17-22.

15 66. When a Y ouTube user flags a video, the video Hohengarten i1368 & Ex. 334 (Gì1ette is put into a queue for review by a team of Dep.) at 42:2-5,92:14-17,150:23- Y ouTube reviewers who make a decision 151:8. whether to remove the video from Y ouTube. Hohengarten i1376 & Ex. 342 (Levine Dep.) at 51:24-52:6,56:17-22.

Hohengarten i1350 & Ex. 316 (B. Hurley Dep.) at 191:10-192:11.

Hohengarten i112 & Ex. 9, GOOOO 1- 05951723, at GOOO01-05951725, GOOO01-05951729.

Hohengarten i1301 & Ex. 273 (October 8, 2006 YouTube Blog post entitled "How Flagging Works").

67. Y ouTube employs an "army of content Hohengarten i113 & Ex. 10, GOOOO 1- reviewers" who review flagged videos "24 02482760, at GOOO01-02482760 hours a day, 365 days a year." ("army of content reviewers").

Hohengarten i114 & Ex. 11, GOOOO 1- 00561567, at G00001-00561577 ("24 hours a day, 365 days a year").

68. Y ouTube has issued guidelìnes to content Hohengarten i115 & Ex. 12, GOOOO 1- reviewers regarding the approval and rejection 00744094, at GOOO01-00744095-152. of flagged videos.

69. The February 23,2007 guidelines issued by Hohengarten i115 & Ex. 12, GOOO01- Y ouTube to its content reviewers instructed 00744094, at GOOOO 1-00744096, them regarding the approval and removal of GOOOO 1-00744120. videos that depict children, sexual content, body parts, crude content, and various illegal acts, but not copyright; one of the examples of "PG-13 sexual content" that reviewers were supposed to approve was a clip from the Daily Show.

70. Community flagging has expedited removal of Hohengarten i112 & Ex. 9, GOOO01- pornography and other content Y ouTube 05951723, at GOOO01-05951728. regards as undesirable. Hohengarten i116 & Ex. 13, GOOO01- 00044974, at GOOOO 1-00044979.

Hohengarten i1368 & Ex. 334 (Gì1ette

16 Dep.) at 150:8-18 (testifying that she was "confident" that pornography is typically flagged and removed within the first 100 views).

71. During the two-week period that community Hohengarten i1397 & Ex. 360 flagging for copyright infringement was (Defendants' Amended Responses and available on Y ouTube, users identified and Objections to Plaintiffs' First Set of flagged unauthorized copyrighted material that Interrogatories, Interrogatory No.2) at Y ouTube reviewed and removed. 8-9.

72. Some Y ouTube employees advocated bringing Hohengarten i117 & Ex. 14, GOOOO 1- back community flagging for copyright 07167907, at GOOO01-07167907. infringement, but that tool was never reinstated after it was disabled on or about Hohengarten i1397 & Ex. 360 September 23,2005. (Defendants' Amended Response and Objections to Plaintiffs' First Set of Interrogatories, Interrogatory No.2) at 8-9.

73. Y ouTube has touted the success of the Hohengarten i112 & Ex. 9, GOOO01- community flagging system in expediting 05951723, at GOOO01-05951728. removal of videos flagged as inappropriate. Hohengarten i116 & Ex. 13, GOOO01- 00044974, at GOOOO 1-00044979.

Hohengarten i1368 & Ex. 334 (Gì1ette Dep.) at 150:8-18.

74. On October 11,2005, YouTube director of Hohengarten i1232 & Ex. 214, finance Brent Hurley suggested to Y ouTube JK00000382, at JKOOOO0382. co-founders Chad Hurley, Steve Chen, and Jawed Karim: "(iJfwe reject a video, flag the Hohengarten i13 50 & Ex. 316 (B. user who uploaded it so that anytime they Hurley Dep.) at 10:9-10:18 (stating upload a new video, we need to approve it Brent Hurley's title). before going lìve"; Y ouTube never implemented that suggestion. See also Hohengarten i1184 & Ex 181, G00001-00827716, at GOOO01- 00827716-17 (Roelef Botha of Sequoia Capital asking whether Y ouTube could "queue(J high risk tags. . . so that they are reviewed before going lìve?" and Y ouTube product manager Maryrose Dunton writing to YouTube co-founder Chad Hurley, "I think we can add this

fairly easily").

17 75. In the same October 11, 2005 email, Y ouTube Hohengarten i1232 & Ex. 214, director of finance Brent Hurley also JK00000382, at JKOOOO0382. suggested that Y ouTube should build a tool that would automatically flag for review "any video with *hot* tags, such as Family Guy, Angry Kid, etc. (We can add to this *hot* lìst as needed)," but such a tool was never implemented.

76. In an October 11, 2005 email, Y ouTube Hohengarten i1232 & Ex. 214, director of finance Brent Hurley suggested to JK00000382, at JKOOOO0382. YouTube co-founders Chad Hurley, Steve Chen, and Jawed Karim that Y ouTube should "flag/highlìght any video with a run time? 1 0 minutes, since most of those are copyrighted shows."

77. On October 18, 2005, YouTube director of Hohengarten i1251 & Ex. 233, finance Brent Hurley sent an email to JK000083 31, at JKOOO08331. YouTube co-founder Steve Chen, Chad Hurley, Jawed Karim and YouTube software Hohengarten i1392 & Ex. 386 at engineer Mike Solomon stating: "Yes, I (Solomon Dep.) at 12:5-14:2 (testifying rejected all of the videos that were listed in to Solomon's job description). this email yesterday. Looks lìke the users simply uploaded the videos again today. * *W e need to beef up admin. Create a tag watch lìst, lìke Family Guy, Baker skateboarding, etc. Also, once we reject a video, flag the user so that we must review all of their new videos before they go lìve. Otherwise, this will continue to happen. :("

78. In a November 8, 2005 email regarding a Hohengarten i118 & Ex. 15, GOOO01- contest in which an uploading Y ouTube user 00504044, at GOOO01-00504044. would be awarded an iPod Nano, YouTube product manager Maryrose Dunton, the Hohengarten i1363 & Ex. 329 (Dunton Y ouTube employee responsible for the user Dep.) at 10:23-23:21 (describing functionalìty of the Y ouTube website, asked Maryrose Dunton's job whether user "Bigjay" was elìgible; Y ouTube responsibilìties ). interface designer Christina Brodbeck

responded, "Cool. . . . However, most of his Hohengarten i1400 & Ex. 363 (Google stuff is copyrighted," and added, "Does this Inc., S-3ASR Registration Statement matter? Probably not, as UCBearcatsl125 is (Feb. 7,2007)) at 16 (page numbers at almost entirely copyrighted. Heh."; in bottom center) (stating Christina response, Maryrose Dunton stated: "Ya. . . I Brodbeck's job title).

don't think we care too much if they've posted

18 copyrighted videos."

79. As a result of Google's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube interface designer Inc., S-3ASR Registration Statement Christina Brodbeck received Google shares (Feb. 7, 2007)) at 5 (page numbers at worth $9.09 million. bottom center) (showing 18,898 shares issued to Christina Brodbeck).

Hohengarten i1306 & Ex. 278 (screenshot of Google's finance webpage showing that the closing price for Google shares on Noverrber 13, 2006 was $481.03).

80. On November 18, 2005, a YouTube user with Hohengarten i1252 & Ex. 234, the email address "anonymousdude@ JK00000824, at JKOOOO0824. gmail.com" sent an email to Y ouTube co- founders Chad Hurley, Steve Chen, and Jawed Hohengarten i1357 & Ex. 323 (Do Karim, Y ouTube director of finance Brent 30(b)(6) Dep.) at 8:15-9:15 (stating Hurley, and Y ouTube engineering manager Cuong Do's title). Cuong Do stating: "How is it that 'Family Guy cartoon clips are deleted, (butJ ECW, WWE, WCW, clips and other TV clips are free to watch? What is the difference with the copyright?"

81. On Monday, November 21,2005, a YouTube Hohengarten i1253 & Ex. 235, user with the email address "lvpsganchito@ JK00000836, at JKOOOO0836. hotmail.com" sent an email to Y ouTube co- founders Chad Hurley, Steve Chen, Jawed Karim, Y ouTube director of finance Brent Hurley, and Y ouTube engineering manager Cuong Do, stating: "I'm a lìttle confused about the rejection of my last and other videos. I have seen other 'family guy' videos on here and when I put one on here its against the rules. Please explan. (sic J I also have other vids that are cartoons from TV Funhouse from SNL, that are still active and lìve. What is the difference?"

82. In a November 24,2005 email, YouTube Hohengarten i119 & Ex. 16, GOOOO 1- director of finance Brent Hurley asked all 00629095, at GOOO01-00629095. Y ouTube employees for "help" reviewing videos "over the long weekend," and Hohengarten i1350 & Ex. 316 (B. instructed them that, "(a J s far as copyright Hurley Dep.) at 80:18-82:8. stuff is concerned, be on the look out for

19 Family Guy, South Park, and full-length anime episodes," but that "music videos and news programs are fine to approve."

83. In a January 2, 2006 email, Y ouTube co- Hohengarten i120 & Ex. 17, GOOOO 1- founder Jawed Karim recommended adding "a 00629474, at GOOO01-00629474. very simple feature that temporarily prevents a user from removing a video" because "next time we have another lazy sunday hit, it would hurt us if the user suddenly removed the video, either out of stupidity, or by

accident. . . . what if we add a flag to certain videos so that when the owner tries to remove the hugely popular video it just gives some error message and does not remove the video."

84. In a January 3,2006 instant message exchange Hohengarten i1206 & Ex. 194 between Y ouTube product manager Maryrose G00001-00507405, at 3 & at Dunton (IM user name maryrosedunton) and GOOO01-00507405. Y ouTube software engineer Jake McGuire (IM user name oJAKEMo) Dunton stated: Hohengarten i1198 & Ex. 374, "between (a YouTube-MySpace disputeJ and G00001-06010126, at GOOO01- the Saturday Night Clìps that got put on our 06010126 (confirming that oJ AKEMo site (which also made the Times) we're now is Jake McGuire's IM user name). getting close to 7 mì1ion views a day." Hohengarten i1363 & Ex. 329 (Dunton Dep.) at 34:15-18 (testifying that maryrosedunton is Maryrose Dunton's IM user name).

Hohengarten i1356 & Ex. 322 (Do Dep.) at 136:19-137:2 (stating Jake McGuire's job title).

85. In a January 25,2006 instant message Hohengarten i1204 & Ex. 192, exchange, YouTube co-founder Steve Chen G00001-00507525, at 4-5 & at (IM user name tunawarrior) told his colleague GOOO01-00507526-27. Y ouTube product manager Maryrose Dunton (IM user name maryrosedunton) that he Hohengarten i1363 & Ex. 329 (Dunton wanted to "concentrate all of our efforts in Dep.) at 35:14-15 (confirming that building up (YouTube'sJ numbers as tunawarrior is Steve Chen's IM user aggressively as we can through whatever name). tactics, however evil," including "user metrics" and "views," and "then 3 months, sell it with 20m views per day and like 2m users or something. . . I think we can sell for somewhere between $250m - $500m . . . in the

20 next 3 months. . . and there *is* a potential to get to $1 b or something."

86. In late January 2006 email exchange, Hohengarten i121 & Ex. 18, GOOO01- YouTube co-founder Steve Chen expressed 00839842, at GOOO01-00839843-44. concern about "our most popular videos" being removed from Y ouTube; Y ouTube content review manager Heather Gillette responded with an email about "the manual process that we have now in rejecting videos for copyright," and stated "if a really popular video is about to be rejected there (should be J a pop-up that says, 'this video has been viewed 20,000 times, are you sure you want to reject?'"

87. In a February 4,2006 instant message Hohengarten i1210 & Ex. 198, conversation, Y ouTube product manager G00001-01931799, at 5 & at Maryrose Dunton (IM user name GOOOO 1-0 1931806. maryrosedunton) told Y ouTube systems administrator Bradley Heilbrun (IM user name Hohengarten i1363 & Ex. 329 (Dunton nurblieh) that YouTube co-founder Chad Dep.) at 30:23-31:2 (stating Bradley Hurley sent her an email "and told me we Heilbrun's job title); 35:16-23 can't feature videos or have contest winners (confinning that nurblieh is Bradley with copyrighted songs in them"; Heilbrun Heilbrun's IM user name). responded "man. That's lìke half our videos"; Dunton replied "I know."

88. In a February 4,2006 instant message Hohengarten i121 0 & Ex. i 98, conversation, Y ouTube product manager G00001-01931799, at 4-5 & at Maryrose Dunton (IM user name GOOOO i -0 1931806. maryrosedunton) told Y ouTube systems administrator Bradley Heilbrun (IM user name nurblieh) that Y ouTube director of finance Brent Hurley told her to take down a copyrighted Ed Sullivan show clip that she uploaded to Y ouTube, and she said "maybe I'll just make it private ;)."

89. In early February 2006, NBC Universal sent Hohengarten i122 & Ex. 19, GOOO01- letters to Y ouTube requesting the removal of 00007027, at GOOO01-00007028-29. the "Lazy Sunday: Chronicles ofNarnia" clìp from the television show Saturday Night Live. Hohengarten i123 & Ex. 20, GOOOO 1- 02403826, at GOOO01-02403826-27. 90. Y ouTube refused to remove the Lazy Sunday Hohengarten i122 & Ex. 29, GOOO01- clips unless NBC Universal provided specific 00007027, at GOOO01-00007028-29.

21 URLs for the clips. Hohengarten i123 & Ex. 20, GOOO01- 02403826, at GOOO01-02403826-27. 91. On February 14, 2006, YouTube vice Hohengarten i124 & Ex. 21, GOOOO 1- president of marketing and programming 02824049, at GOOOO 1-02824049. Kevin Donahue emailed Y ouTube product manager Maryrose Dunton stating: "I just got Hohengarten i1359 & Ex. 325 off the phone with NBC and I'm trying to get (Donahue Dep.) at 20:23-21 :3,75:11- them to let us keep the Lazy Sunday clip on 76:4 (stating Kevin Donahue's job the site. I need to convince them of the title). promotional value of doing that considering the fact that their legal dept. is having us remove ALL of their stuff. Julìe and I are worried that if Lazy Sunday is taken down, then it could be taken as a bad sign by the journalìsts who are writing about us now and may search for it."

92. On February 16, 2006, YouTube inforn1ed its Hohengarten i1300 & Ex. 272 users in a Y ouTube Official Blog post titled (February 16, 2006 YouTube Blog "Lazy Sunday": "Hi Tubers! NBC recently entry "Lazy Sunday"). contacted Y ouTube and asked us to remove Saturday Night Live's 'Lazy Sunday: Chronicles of Narnia' video. We know how popular that video is but Y ouTube respects the rights of copyright holders. You can stì1 watch SNL's 'Lazy Sunday' video for free on NBC's website"; in the same blog post, YouTube informed its users of"(sJome good news: we are happy to report that YouTube is now serving up more than 15 mì1ion videos streamed per day- that's nearly 465M videos streamed per month with 20,000 videos being uploaded daily."

93. In a February 17,2006 instant message Hohengarten i1209 & Ex. 197, conversation, Y ouTube systems administrator G00001-00507331, at 2-3 & at Bradley Heilbrun (IM user name nurblìeh) GOOOO 1-00507331-32. asked Y ouTube product manager Maryrose Dunton (IM user name maryrosedunton), "was it me, or was the lawyer thing today a cover- your-ass thing from the company?" Dunton responded, "oh totally. . . did you hear what they were saying? it was really hard core . . . if we even see copyrighted material on the site, as employees we're supopsed (sic J to report it"; Heilbrun replied, "sure, whatever," and Dunton said "I guess the fact that I started like

22 5 groups based on copyrighted material probably isn't so great"; in response Heilbrun said "right exactly. . . but it's a cover your ass . . . so the board can say we told maryrose not to do this."

94. In an instant message exchange between Hohengarten i1205 & Ex. 193, YouTube co-founder Steve Chen (IM user G00001-00507535, at 6-7 & at name tunawarrior) and YouTube product GOOO01-00507538. manager Maryrose Dunton (maryrosedunton) dated February 28,2006, Steve Chen stated that, "we're the first mass entertainment thing accessible from the internet," that Y ouTube was "revolutionizing entertainment," and that "we are bigger than the internet, . . . we should be comparing ourselves to, say, abc/fox/whatever. "

95. In the same instant message conversation, Hohengarten i1205 & Ex. 193, Y ouTube product manager Maryrose Dunton G00001-00507535, at 8 & at (IM user name maryrosedunton) reported the GOOO01-00507539. results of a "lìttle exercise" she performed wherein she "went through all the most viewed/most discussed/top favorites/top rated to try and figure out what percentage is or has copyrighted materiaL. it was over 70%." She added, "what I meant to say is after I found that 70%, I went and flagged it all for review."

96. When deposed, Y ouTube product manager Hohengarten i1363 & Ex. 329 (Dunton Maryrose Dunton confirmed in reference to Dep.) at 84:12-85:9. the February 28,2006 instant message exchange with YouTube co-founder Steve Chen (see SUF i195) that she was being sarcastic and did not actually flag any of the copyrighted videos for review.

97. As a result of Go ogle's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube product manager Inc., S-3ASR Registration Statement Maryrose Dunton received Google shares dated February 7,2007) at 5 (showing worth $4.13 mì1ion. 8,590 shares issued to "Mayrose Dunton" (sic J).

Hohengarten i1306 & Ex. 278 (screenshot of Google's finance webpage showing that the closing price for Google shares on November 13,

23 2006 was $481.03).

98. A February 2006 YouTube Board Presentation Hohengarten i125 & Ex. 22, GOOOO 1- noted that YouTube received 20 mì1ion views 00762174, at GOOOO 1-00762181. per day and expressly pointed out the day when the "SNL Narnia clip," also known as "Lazy Sunday," was "added" to Y ouTube.

99. A March 2006 Y ouTube company Hohengarten i1334 & Ex. 302, presentation to potential investor TriplePoint TP000479, at TPOO0490. Capital touted the success of the "NBC/SNL 'Lazy Sunday' clip" as one example of "Incredible Results with Branded Video" and noted that the clip "(rJeceived 5 mì1ion views in about a month."

100. On March 1, 2006, Newsweek publìshed an Hohengarten i126 & Ex. 23, GOOOOl- article titled "Video Napster?" with the 07728393, at GOOO01-07728393. subheading "Only a year old, YouTube has already rocketed past Google and Yahoo to become NO.1 in Web video. But can it survive the fear of a copyright crunch?"; the article discusses the presence on Y ouTube of infringing content from major media companies.

101.In response to the March 1,2006 Newsweek Hohengarten i127 & Ex. 24, GOOO01- article, Y ouTube vice president of marketing 00522244, at GOOO01-00522244. and programming Kevin Donahue sent an email asking another Y ouTube employee to "please go through the newsweek article and work with heather to remove all of the lìsted copyright infringing video."

102'in an instant message conversation discussing Hohengarten i1207 & Ex. 195, the March 1, 2006 Newsweek article, Bradley G00001-01931840, at 3 & at Heilbrun (IM user name nurblìeh) stated to GOOO01-01931841. Y ouTube product manager Maryrose Dunton (IM user name maryrosedunton) in an instant message: "this affects my chance at being rich, and that upsets me."

103.As a result of Go ogle's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube systems administrator Inc., S-3ASR Registration Statement Bradley Heilbrun received Google shares (February 7,2007)) at 5 (page numbers worth $6.2 mì1ion. at bottom center) (showing 12,885 shares issued to "Bradley Heilburn"

24 (sic J).

Hohengarten i1306 & Ex. 278 (screenshot of Google's finance webpage showing that the closing price for Google shares on November 13, 2006 was $481.03).

104'in a March 1, 2006 instant message Hohengarten i1207 & Ex. 195, conversation with Y ouTube systems G00001-01931840, at 6-7 & at administrator Bradley Heilbrun (IM user name GOOO01-01931843. nurblìeh), YouTube product manager Maryrose Dunton (IM user name maryrose dunton) said "the truth of the matter is, probably 75-80% of our views come from copyrighted materiaL" She agreed that Y ouTube has some "good original content" but "it's just such a small percentage."

105. In a March 8, 2006 email, a Y ouTube Hohengarten i1254 & Ex. 236, employee sent a message to other Y ouTube JK00002261, at JKOOO02261-62. employees attaching a screenshot of a search for "dailyshow."

1 06.In a March 14, 2006 email, Y ouTube engineer Hohengarten i128 & Ex. 25, GOOO01- Matt Rizzo stated: "this is some ugly 05172407, at GOOOO 1-05172407. javascript so these copyright cop assholes can click through the pages and store what they checked. I hope they die and rot in hell!"

107. In a March 15,2006 instant message Hohengarten i1213 & Ex. 201, conversation Y ouTube engineer Matt Rizzo GOOOO 1-00829681, at 9-10 & at (IM user name mattadoor) described copyright GOOOO 1-00829687. owners as "fucking assholes," asking "just how much time do you guys want to give to Hohengarten i1363 & Ex. 329 (Dunton these fucking assholes," and Y ouTube product Dep.) at 261:20-261:21 (confirming manager Maryrose Dunton (IM user name that mattadoor is Matt Rizzo's IM user maryrosedunton) responded: "hah. not any name); 275:13-276:10 (confinning that time really." "fucking assholes" refers to copyright owners).

Hohengarten i1400 & Ex. 363 (Google Inc., S-3ASR Registration Statement (February 7,2007)) at 16 (page numbers at bottom center) (lìsting Matt Rizzo's job title).

25 1 08.As a result of Google's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube engineer Matt Rizzo Inc., S-3ASR Registration Statement received Google shares worth $3.7 mì1ion. (February 7,2007)) at 6 (page numbers at bottom center) (showing 7,731 shares issued to Matt Rizzo).

Hohengarten i1306 & Ex. 278 (screenshot 0 f Goo gl e' s finance webpage showing that the closing price for Google shares on November 13, 2006 was $481.03).

109. In a March 22, 2006 memorandum distributed Hohengarten i1255 & Ex. 237, to the members ofYouTube's Board of JK00000173, at JKOOOOOl73. Directors at a board meeting, Y ouTube co- founder Jawed Karim wrote under the heading Hohengarten i1347 & Ex. 313 (Karim "Copyrighted content": "Although the new Dep.) at 178:18-179:19. 10-minute length restriction (on clips uploaded to Y ouTube J serves well to reinforce

the offcial line that Y ouTube is not in the

business of hosting full-length television shows, it probably won't cut down the actual amount of ìlegal content uploaded since standard 22-minute episodes can stì1 easily be uploaded in parts, and users wì1 continue to upload the 'juiciest' bits of television shows."

11 O.In the same March 22, 2006 memorandum, Hohengarten i1255 & Ex. 237, Y ouTube co-founder Jawed Karim wrote: "As JK00000173, at JKOOOOO173. of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube's popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complìes with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly ìlegal and likely to attract criticism. This wì1 help to dispel YouTube's association with Napster (Newsweek: "Is YouTube the Napster of Video?", "Showbiz unsure if YouTube a friend or foe.)."

11 1.At his deposition, YouTube co-founder Jawed Hohengarten i1347 & Ex. 313 (Karim

26 Karim stated that he distributed his March 22, Dep.) at 178:19-183:4. 2006 memorandum at a Y ouTube board meeting.

112.In March 2006, YouTube considered Hohengarten i1363 & Ex. 329 (Dunton implementing an automated tool that would Dep.) at 303:4-305:9,307:18-308:4. search the metadata for each uploaded video to identify potentially infringing clips and send emails to content owners to notify them of the potential infringement so that they could review the video and request its removaL.

113 .At his deposition, Y ouTube director of finance Hohengarten i1350 & Ex. 316 (B. Brent Hurley testified that the automated Hurley Dep.) at 216:21-218:17. video metadata search tool would have allowed content owners to "define at their Hohengarten i129 & Ex. 26, GOOO01- direction what. . . keywords that they would 00630641, at GOOO01-00630641. lìke to save as sort of a predefined search," that the tool would have sent those content owners "emails . . . daily, weekly, monthly. . . at their direction," and that his 'vision' ofthe tool would have allowed Viacom to search for terms lìke "Daily Show."

114. In a March 11, 2006 instant message Hohengarten i1214 & Ex. 202, exchange, Y ouTube engineer Matt Rizzo (IM G00001-00829702, at 4 & at user name mattadoor) told YouTube product GOOOO 1-00829704. manager Maryrose Dunton (IM user name maryrosedunton), that implementing the tool "isn't hard" and would only "take another day or w/e (weekendJ . . . but I still don't understand why we have to cater to these guys"; Dunton voiced her opposition to the tool, stating "(IJ hate this feature. I hate making it easier for these a-holes," "ok, forget about the email alerts stuff," and "we're just trying to cover our asses so we don't get sued."

115.YouTube never implemented the search tool Hohengarten i1214 & Ex. 202, described in SUF i1114. G00001-00829702, at 4 & at GOOOO 1-00829704 ("forget about the email al erts stuff.").

116.In an April 3, 2006 email, a YouTube Hohengarten i130 & Ex. 27, GOOO01- employee characterized a Fort Worth Star- 03060898, at GOOOO 1-03060899.

27 Telegram article as a "great regional piece. . . that really captured the passion ofthe Y ouTube user and would have convinced me as her reader to check out the service." The article described "South Park" and "Daily Show" videos on Y ouTube.

117.In a May 14,2006 email exchange with Hohengarten i131 & Ex. 28, GOOOO 1- YouTube's copyright personnel, a YouTube 00558783, at GOOOO 1-00558783-84. user whose South Park clip had been taken down wrote: "You guys have TONS of South Park Clìps... is mine the only one in violation? You have WWF/WWE Media. WCW Media.

Tons of Media that is liable for infringement of copyrights and your site promotes it. Seems odd."

118.In a May 14,2006 email exchange with Hohengaiien i131 & Ex. 28, GOOO01- YouTube's copyright personnel, a YouTube 00558783, at GOOO01-00558783-84. user responded to Y ouTube' s claim that it "remove( s J videos when we receive a complaint from a rights holder" by saying: "knowing that you contain a lot of copywrighted (sic J media, why don't you guys

remove it instead of wait around for a complaint? Basically everyone else gets away with it while I am now warned about it. Seems odd again. So what would happen if I report the entire youtube website and it's content? Would you guys remove your ìlegal media then?"

119.In a May 25,2006 instant message Hohengarten i1216 & Ex. 376, conversation, Y ouTube product manager G00001-07169708, at 8 & at Matthew Liu (IM user name coda322) stated: GOOOO 1-07169713. "one of the vids in my playlìst got removed . . . for copyright infringement. . . assholes . . . Hohengarten i1200 & Ex. 278, im going (sic J to go hit the customer service G00001-07181365, at GOOO01- lady." 07181365 (noting that coda322 is Matthew Liu's AOL account name).

Hohengarten i1193 & Ex. 190, G00001-06525907, at GOOO01- 06525907 (noting that coda322 is a Y ouTube account name used by Matthew Liu).

28 120'in a June 4,2006 instant message Hohengarten i1217 & Ex. 377, conversation, Y ouTube product manager G00001-07169928, at 2 & at Matthew Liu (IM user name coda322) directed GOOOO 1-07169928. a friend to two Y ouTube profile playlìst pages containing content that he recognized as infringing, stating, "go watch some superman. . . dont show other people though. . . it can get taken off'; Liu's friend asked, "why would it get taken off(?J"; Liu responded, "cuz its copyrighted. . . technically we shouldn't allow it . . . but we're not going to take it off until the person that holds the copyright. . . is lìke . . . you shouldnt have that. . . then we'll take it off ."

121.In a June 26,2006 instant message Hohengarten i1215 & Ex. 203, conversation with an unknown individual, G00001-07169720, at 2 & at Y ouTube product manager Matthew Liu GOOOO 1-07169720. responded to the question "what percentage of the videos on youtube are violating copyright infringement" by stating, "its a lot lower than you would think. . . but in tenns of. . . percentage of videos that are watched. . . it is significantl y higher."

122.0n June 27,2006, YouTube co-founders Chad Hohengarten i132 & Ex. 29, GOOO01- Hurley and Steve Chen, Y ouTube product 02761607, at GOOO01-02761607. manager Maryrose Dunton and Y ouTube senior software engineer Erik Klein received a Hohengarten i133 & Ex. 30, GOOO01- Wall Street Journal article about YouTube 00420319, at GOOO01-00420321. that stated: "critics say the most-viewed items often involve some type of copyright Hohengarten i1392 & Ex. 386 infringement. On a recent day, top-viewed (Solomon Dep.) at 18:13-18:23

videos included clìps from. . . 'The Daily (testifying to Erik Klein's job title). Show.'"

123. When a user uploads a video the user may Hohengarten i1356 & Ex. 322 (Do choose whether to make the video publìc Dep.) at 172:16-173:8,180:8-181:4. (viewable to any user unless restricted by age or geography) or private (viewable to only the Hohengarten i134 7 & Ex. 313 (Karim uploading user and users invited by the Dep.) at 134:3-16. uploading user). Hohengarten i1368 & Ex. 334 (Gì1ette Dep.) at 154:8-21.

Hohengarten i1385 & Ex. 351 (Schaffer Dep.) at 162:19-24.

29 124.Private videos are not searchable by a content Hohengarten i188 & Ex. 85, GOOO01- owner seeking to identify instances of 00827503, at GOOO01-00827503. infringement on Y ouTube. Hohengarten i157 & Ex. 54, GOOO01- 02055019, at GOOO01-02055019.

Hohengarten i1361 & Ex. 327 (Drummond Dep.) at 195:13-20. l25.YouTube co-founder Chad Hurley testified in Hohengarten i1346 & Ex. 312 (C. deposition that it is possible for a user to Hurley Dep.) at 238:18-239:9. serially upload an entire movie as several private videos and that then the "content owner can't see them."

126.In June 2006 YouTube employees proactively Hohengarten i158 & Ex. 55, GOOO01- reviewed private videos uploaded by the 40 02693804, GOOO01-02693808. users who uploaded the most private videos over a two-day period, concluded that 17 of Hohengarten i159 & Ex. 56, GOOO01- those user accounts contained copyrighted 05150988, at GOOO01-05150988. private videos, and consequently closed those 17 accounts.

127.In June 2006 YouTube employees proactively Hohengarten i158 & Ex. 56, GOOO01- reviewed private videos uploaded by the 40 02693804, at GOOOO 1-02693 808. users who uploaded the most total videos over a two-day period, concluded that 22 of those Hohengarten i159 & Ex. 56, GOOO01- user accounts contained copyrighted private 05150988, at GOOO01-05150988. videos, and closed 17 of those 22 accounts.

128.In an August 3,2006 instant message Hohengarten i1208 & Ex. 196, conversation with Y ouTube engineer Matthew G00001-07585952, at 2 & at Rizzo (IM user name mattadoor), YouTube GOOO01-07585952. product manager Maryrose Dunton (IM user name maryrosedunton) said "so *technically*

if you even perform a copyrighted song, it's considered infringement. but we can leave this up until someone bitches."

129.A YouTube board meeting presentation dated Hohengarten i1330 & Ex. 298, August 23, 2006 stated: "YouTube has SCOl1742, at SC011760. become the next generation media AND advertising platform."

130'in an August 24, 2006 email to other Y ouTube Hohengarten i135 & Ex. 32, GOOO01- employees, Y ouTube systems administrator 03631419, at GOOO01-03631419. Paul Blair provided a lìnk to a Daily Show

30 clip on Y ouTube. Hohengarten i136 & Ex. 33, GOOOOl- 03406085, at G00001-03406086 (stating Paul Blair's job title).

131. Y ouTube recognized that users might break up Hohengarten i137 & Ex. 34, G00001- a movie or television episode into multiple 00988969, at GOOOO 1-00988970. parts and upload the parts to Y ouTube, and considered creating a queue for human review Hohengarten '1 368 & Ex. 334 (Gì1ette of videos close to ten minutes long, but never Dep.) at 49:23-50:10,216:2-10, implemented such a queue. 217:15-19.

Hohengarten i138 & Ex. 35, G00001- 00953867, at G00001-00953868.

132.A YouTube lìst of the "top keyword searches" Hohengarten i141 & Ex. 38, G00001- in the United States for September 19,2006 03045959, at G00001-03045960-63. listed many Viacom shows and movies, including "south park" ( ), "flavor of love" ( , "dave chappelle" ( ), "daily show" ( ), "jon stewart" ( searches), "colbert" ( "transfonners" ( "southpark" (

B. Google's Knowledge and Intent Concerning Infringement on YouTube

133.Before acquiring YouTube, Google had its Hohengarten '1 366 & Ex. 332 (Eun own Internet video site, Google Video, which Dep.) at 57:3-58:2. allowed users to upload videos. Hohengarten i1381 & Ex. 347 (P. Walker Dep.) at 240:6-240:14.

134. Until September 2006, Google Video Hohengarten i1366 & Ex. 332 (Eun employees reviewed each video uploaded to Dep.) at 118:19-121:25,130:3-130:17. the Google Video site for copyright

infringement and other terms of use Hohengaiien i142 & Ex. 39, G00001- violations before allowing the video to be 00794737, at GOOOOl-00794742-43 displayed to users of the site. (attachment).

Hohengarten i1194 & Ex. 191,

31 G00001-00923210, at GOOO01- 00923210.

Hohengarten i1381 & Ex. 347 (P. Walker Dep.) at 69:6-75:7.

Hohengarten i13 80 & Ex. 346 (Narasimhan Dep.) at 13:25-16:8, 51:16-53:6.

Hohengarten i144 & Ex. 41, GOOO01- 03114019, at GOOO01-03114019.

Hohengarten i146 & Ex. 43, GOOO01- 06555098, at GOOO01-06555098.

135. Until September 2006, all videos uploaded to Hohengarten i1380 & Ex. 346 the Google Video website were placed in a (Narasimhan Dep.) at 12:5-16:8. "video approval bin, essentially a video review queue," and were reviewed by a Google employee before being made available for viewing on the Google Video website.

136. Each video uploaded to Google Video and Hohengarten i1366 & Ex. 332 (Eun placed in the v'ideo review queue was Dep.) at 68:15-71 :8, 130:1-130:17. reviewed by a Google employee for copyright infringement, porn, violence, and other Hohengarten i1194 & Ex. 191, reasons. G00001-00923210, at GOOO01- 00923210.

Hohengarten i1380 & Ex. 346 (Narasimhan Dep.) at 41:16-22,50:9- 53:6.

Hohengarten i144 & Ex. 41, GOOO01- 03114019, at GOOO01-03114019.

13 7.In a June 26, 2006 email titled "ì1egal Hohengarten i142 & Ex. 39, GOOO01- uploads," Google vice president of content 00794737, at GOOO01-00794737. partnerships David Eun asked Google Video content review manager Bhanu Narasimhan, Hohengarten i1380 & Ex. 346 who was in charge of the team reviewing (Narasimhan Dep.) at 8:12-10:5 (stating videos in the video review queue: "In the Bhanu Narasimhan's job title), 10:24- swirl of discussions around copyright 11:3,148:2-148:8,152:5-152:20. enforcement polìcies, can you tell me how

32 many illegal videos we catch each week on Hohengarten i1366 & Ex. 332 (Eun average and what types/kinds/categories they Dep.) at 25:7-25: 19 (stating David fall into? How do they correspond to the Eun's job title). stuff that gets uploaded to Y ouTube?"; Ms. Narasimhan responded: "We catch around 1 0% of all online user uploaded videos during review. Of these approximately 90% is disapproved due to copyright violation, and the rest due to policy (porn, violence, etc.)."

138.Google Video stopped proactively reviewing Hohengarten i145 & Ex. 42, GOOO01- for copyright infringement on or about 00802317, at GOOOO 1-00802317. September 1, 2006. Hohengarten i1380 & Ex. 346 (Narasimhan Dep.) at 13:25-16:8.

Hohengarten i146 & Ex. 43, GOOO01- 06555098, at GOOO01-06555098.

139.Google Video also used keyword searching Hohengarten i147 & Ex. 44, GOOO01- for terms such as "Daily Show," "Jon 00990640, at GOOOO 1-00990641. Stewart," "Dave Chappelle," and "Comedy Central" to locate videos that infringed Viacom's and others' copyrights.

140'in a January 15, 2006 email Google executive Hohengarten i148 & Ex. 45, GOOO01- Peter Chane responded to a colleague who 03592968, at GOOO01-03592968. emailed him a lìnk to a Y ouTube video by saying: "google video doesn't have this one Hohengarten i1353 & Ex. 319 (Chane b/c we have a zero tolerance polìcy for Dep.) at 8:18-10:25 (stating Peter copyrighted content." Chane's job title).

141.In the same January 15, 2006 email, Google Hohengarten i148 & Ex. 45, GOOO01- executive Peter Chane continued, in reference 03592968, at GOOO01-03592968. to a discussion he had with Y ouTube co- founder Chad Hurley and another Y ouTube Hohengarten i1353 & Ex. 319 (Chane executive Chris Maxcy: "youtube is at an Dep.) at 8:18-10:25, 48:10-50:18. advantage b/c they aren't the target that we are with issues lìke this. they are aware of this (I spoke with them on friday) and they plan on exploiting this in order to get more and more traffic."

142.In a February 7,2006 email Google executive Hohengarten i1 49 & Ex. 46, GOOOO 1- Peter Chane wrote to several Google 03594244, at GOOO01-03594244. colleagues: "my concern with youtube is their inclusion of clearly copyrighted content in

33 their index. if you query for SNL or Jon Stewart you'll see what I'm talking about. . . . ifthey were to be a part of google I assume we'd impose our zero tolerance polìcy with respect to copyright infringement which would significantly reduce their index size and traffic."

143.In a February 7, 2006 email Google executive Hohengarten i150 & Ex. 47, GOOO01- Peter Chane wrote to several Google 05084213, at GOOO01-05084213. colleagues: "my concern about youtube is their dependence upon copyrighted content for traffic."

144.0n March 4,2006 Google executive Patrick Hohengarten i151 & Ex. 48, GOOO01- Walker emailed Google Video Product 00562962, at GOOO01-00562962. Manager Hunter Walk, the business product manager of Google Video, that he was Hohengarten i13 81 & Ex. 347 (P. "baffed" by comparisons between Y ouTube Walker Dep.) at 144:15-145:10 and Google Video because Y ouTube was (testifying to Hunter Walk's job title). "doing lìttle to stem its traffc growth on the back of pirated content," calling that choice Hohengarten i1366 & Ex. 332 (Eun "unsustainable and irresponsible." Dep.) at 166:20-167:12 (testifying to Hunter Walk's job title).

145.0n April 27, 2006, Google executive Peter Hohengarten i152 & Ex. 49, GOOO01- Chane sent an email to the Video Team at 00566289, at GOOOO 1-00566289. Google forwarding the statement by Peter

Chernin, then CEO of Fox Entertainment, about Y ouTube: "Exciting as it shows the potential pent up demand. we did a survey

and more than 80 percent of video on this site is copyrighted content"; Google Video business product manager Ethan Anderson replìed, "Holy cow."

146.By May 2006 YouTube had far surpassed Hohengarten i153 & Ex. 50, GOOO01-

Google Video in terms of number of users, 00495746, at G00001-00495746 (Eric

number of playbacks, and number of videos. Schmidt stating: "My primary concern is that. . . we are behind Y outube.").

Hohengarten i1 54 & Ex. 51, GOOOO 1- 00496021, at GOOO01-00496024.

Hohengarten i155 & Ex. 52, GOOO01- 00496614, at GOOO01-00496633.

34 147.In May 2006, Google held a Google Product Hohengarten i1384 & Ex. 350 Strategy (or "GPS") meeting attended by top (Rosenberg Dep.) at 50: 15-51:7. executives, including Google CEO Eric Schmidt; the meeting focused on Google Hohengarten i156 & Ex. 53 GOOO01- Video. 01495915, at GOOO01-01495915.

Hohengarten '1 348 & Ex. 314 (Schmidt Dep.) at 76:20-78:10.

Hohengarten i1353 & Ex. 319 (Chane Dep.) at 114:22-115:6.

148.An early May 2006 draft information sheet Hohengarten i160 & Ex. 57 GOOO01- about Y ouTube created for Google co- 04430721, at GOOO01-04430722.002. founder Larry Page discussed YouTube's "Fast-start history" and stated that YouTube's Hohengarten i1349 & Ex. 315 (Page "(lJack of focus on copyright violation Dep.) at 10:22-10:24 (testifying to Larry (especially early on) created Napster-type Page's job title). adoption increases: 'good content' available for free without delay."

149.In a May 2,2006, email to Google executive Hohengarten i153 & Ex. 50, GOOO01- Susan Wojcicki, Google vice president of 00495746, at GOOO01-00495746. content partnerships David Eun stated that he "ran into Peter and he had this idea to 'beat Hohengarten i1366 & Ex. 332 (Eun Y ouTube' by calling quits on our copyright Dep.) 115:8-116:5,201 :2-201:9 complìance standards"; in his deposition Eun (testifying to Susan Wojcicki's job identified "Peter" as Google executive Peter description). Chane. Hohengarten i1353 & Ex. 319 (Chane Dep.) at 9:5-10:4.

Hohengarten i1366 & Ex. 332 (Eun Dep.) at 201 :2-201 :9.

150.A May 3, 2006 Google Video document Hohengarten i161 & Ex. 58, GOOO01- stated: "Why is Y ouTube the Key 02361246, at GOOO01-02361247. Competitor? Not all traffc is created equal. Traffic is high but content is mostly ìlegal content (copyright infringing but not porn); how would comparable usage stats look for consumption of just legal content?"

151.A May 5, 2006 draft presentation from Hohengarten i162 & Ex. 59, GOOO01- Google vice president of content partnerships 00496065, at GOOO01-00496086. David Eun for the GPS meeting summarized the "Views of Premium Content Owners On

35 Y ouTube" and stated: "Y ouTube is perceived as trafficking mostly ìlegal content -- 'it's a video Grokster. '"

152.A May 9,2006 Google Video presentation Hohengarten i163 & Ex. 60, G00001- titled "Content Acquisition Strategy Update" 00502665, at G00001-00502674, stated that "Y ouTube' s business model is GOOOO 1-00502684. completely sustained by pirated content," and recommended that "we should beat Y ouTube by improving features and user experience, not being a 'rogue enabler' of content theft."

153.In a May 10, 2006 email to Google executive Hohengarten i164 & Ex. 61, GOOOO 1- Patrick Walker, Google Video business 00482516, at G00001-00482516. product manager Ethan Anderson stated: "I can't belìeve you're recommending buying Hohengarten i1381 & Ex. 347 (P. Y ouTube. . . . they're 80% ìlegal pirated Walker Dep.) at 87:6-87:12 (testifying content" to Ethan Anderson's job title).

154.A May 11, 2006 draft presentation for the Hohengarten i1 54 & Ex. 51, GOOOO 1- GPS titled "Google Video" by Google 00496021, at G00001-00496024, executive Peter Chane stated that Y ouTube GOOOO 1-00496031. had more daily video uploads and daily video views than Google Video.

155.The same May 11,2006 draft presentation Hohengarten i1 54 & Ex. 51, GOOOO 1- stated that "Y ouTube is growing" in part 00496021, at GOOOO 1-00496031. because of its "Liberal copyright policy," including "No proactive screening; reactive DMCA only," making "YouTube better for users."

156. The same May 11, 2006 draft presentation Hohengarten i1 54 & Ex. 51, GOOOO 1- included a "Copyright polìcy parity analysis" 00496021, at G00001-00496035 stating that on Y ouTube, "Partial works (are J (emphasis in original). accepted(;J CSP AN, Family Guy, John Stewart, NBA clips, music videos posted on the site(;J YouTube gets content when it's hot (Lazy Sunday, Stephen Colbert, Lakers wins at the buzzer)"; and stating with respect to Google Video that it "(tJakes us too long to acquire content directly from the rights holder."

157.In a May 11, 2006 document titled "Video Hohengarten i155 & Ex 52, G00001- GPS content pages FINAL," sent to Google 00496614, at G00001-00496627,

36 executive Peter Chane, Google vice president G00001-00496633, GOOO01- of content partnerships David Eun, and others 00496637. for integration into the material prepared for the GPS, the Google Video team stated: "Premium Content Owners. . . (mainly) perceive YouTube as trafficking mostly ìlegal content -- 'it's a video Grokster'''; "we should beat Y ouTube by improving features and user experience, not being a 'rogue enabler' of content theft"; "Y ouTube' s content is all free, and much of it is highly sought after pirated clìps"; and "Y ouTube' s business model is completely sustained by pirated content. They are at the mercy of companies not responding with DMCA requests."

158.In a May 12,2006 email to Google CEO Eric Hohengarten i165 & Ex. 62, GOOO01- Schmidt and Google senior vice president 00496651, at GOOOO 1-00496651. Omid Kordestani, Google vice president David Eun stated that "the Video team" at Hohengarten i13 75 & Ex. 341 Google "has focused on two questions. . . 1) (Kordestani Dep.) at 20:14-21:7 how we 'beat YouTube' in the short term; (testifying to Omid Kordestani's job and 2) how we win over time"; and that title). "there was heated debate about whether we should relax enforcement of our copyright polìcies in an effort to stimulate traffic growth, despite the inevitable damage it would cause to relationships with content owners. I think we should beat Y ouTube . . . -- but not at all costs."

159.In the same May 12,2006 email, Google vice Hohengarten i1 65 & Ex. 62, GOOOO 1- president of content partnerships David Eun 00496651, at GOOOOl-496652. stated, regarding Y ouTube, that a "large part of their traffic is from pirated content. When we compare our traffic numbers to theirs, we should acknowledge that we are comparing

our 'legal traffc' to their mix of traffc from legal and ìlegal content. One senior media executive told me they are monitoring Y ouTube very closely and referred to them as a 'Video Grokster. '"

160'in a June 2, 2006 instant message Hohengarten i1211 & Ex. 199, conversation, Google vice president of G00001-02363217, at 2 at & at content partnerships David Eun (IM user GOOO01-02363217.

37 name [email protected]) told another Google executive Patrick Walker (IM user Hohengarten i1352 & Ex. 318 (Brin name [email protected]) that although Dep.) at 7:15-7:17 (testifying to Sergey Eun and Google co-founder Sergey Brin Brin's job title). opposed relaxing Google Video's copyright polìcies, Google's CEO Eric Schmidt See also Hohengarten i167 & Ex. 64, supported the change. G00001-00563430, at GOOO01- 00563431 ("Shouldn't the lesson here be (tJo play faster and looser and be aggressive until either a court says ("Jno" or a deal gets struck. I don't think there can be an in (b Jetween").

161. On June 8, 2006, Google senior vice Hohengarten i166 & Ex. 63, GOOO01- president Jonathan Rosenberg, Google Senior 00791569, at GOOO01-00791575,

Vice President of Product Management, G00001-00791594 (emphasis in emailed Google CEO Eric Schmidt and original). Google co-founders Larry Page and Sergey Brin a Google Video presentation that stated Hohengarten i1384 & Ex. 350 the following: "Pressure premium content (Rosenberg Dep.) at 12:9-12:18 providers to change their model towards (testifying to Jonathan Rosenberg's free(;J Adopt 'or else' stance re prosecution position). of copyright infringement elsewhere(;J Set up

'play first, deal later' around 'hot content. '" The presentation also stated that "( w J e may be able to coax or force access to viral premium content," noting that Google Video could "Threaten a change in copyright polìcy" and "use threat to get deal sign-up."

162.In a June 28, 2006 email to numerous other Hohengarten i167 & Ex. 64, GOOO01- Google executives, Google vice president of 00563430, at GOOOOI-00563430. content partnerships David Eun stated: "as Sergey pointed out at our last GPS, is changing polìcy (tJo increase traffc knowing beforehand that we'll profit from ìlegal (dJownloads how we want to conduct business? Is this Googley?"

163. In his deposition, Google vice president of Hohengarten i1366 & Ex. 332 (Eun content partnerships David Eun identified the Dep.) at 170:4-8. "Sergey" referred to in his June 28, 2006 email (see SUF i1162) as Google founder Sergey Brin.

164.0n June 17,2006, Google Video business Hohengarten i168 & Ex. 65, GOOO01- product manager Ethan Anderson sent 00563469, at GOOOO 1-00563469.

38 Google executive Patrick Walker an email listing the "Top 10 reasons why we shouldn't See also Hohengarten i1317 & Ex. 387 stop screening for copyright violations," (Google Investor Relations page entitled including: "1. It crosses the threshold of "Google Code of Conduct") ("The Don't be Evil to facilìtate distribution of Google Code of Conduct is one of the other people's intellectual property, and ways we put 'Don't be evil' into possibly even allowing monetization of it by practice. "). somebody who doesn't own the copyright"; "2. Just growing any traffic is a bad idea. This polìcy wì1 drive us to build a giant index of pseudo porn, lady punches, and copyrighted material. . ."; "3. We should be able to win on features, a better (user interface J technology, advertising relationships - not just polìcy. It's a cop out to resort to dist-rob-ution"; and "7. It makes it more difficult to do content deals with you

have an index of pirated materiaL."

165.0n September 24,2006, less than three Hohengarten i169 & Ex. 66, GOOO01- weeks before Google announced its 00792297, at GOOO01-00792297.

acquisition of You Tube, a Google employee sent an email that included a lìnk to a Daily Show video that had been uploaded to Y ouTube, stating: "Good old Y ouTube - copyright, schmoppyright."

166.Prior to Google's announcement of its Hohengarten i1361 & Ex. 327

acquisition of You Tube on October 9, 2006, a (Drummond Dep.) at 23:5-26:8. team of Google employees performed due dilìgence relating to the proposed acquisition

of You Tube.

167.Google hired Credit Suisse to perform a Hohengarten i1362 & Ex. 328 (Duncan

valuation of You Tube and to render a fairness 30(b)(6) Dep.) at 60:16-68:25. opinion regarding the proposed $1.65 bì1ion purchase price. Hohengarten i1321 & Ex. 290, CSSU 002845 at, CSSU 002847.

168.Google's due diligence team analyzed a Hohengarten i1322 & Ex. 291 CSSU

39 random sample of hundreds of videos 002686, at CSSU 002686. provided by Y ouTube that Google belìeved to be representative of the types of content on Hohengarten i1362 & Ex. 328 (Duncan YouTube. 30(b)(6) Dep.) at 87:3-91:8.

169.This random sample of You Tube videos was Hohengarten i170 & Ex. 67, GOOO01- given to the Google due dilìgence team by 04736644, at GOOO01-04736644. YouTube co-founder Steve Chen.

170.Google's analysis of the random sample of Hohengarten i1322 & Ex. 291 CSSU Y ouTube videos determined that 63 % of the 002686, at CSSU 002686. videos on Y ouTube were "Premium/removed," meaning that the Hohengarten i1362 & Ex. 328 (Duncan content was "copyright (either in whole or 30(b)(6) Dep.) at 89:4-7, 95:18-98:19. substantial part)" or "removed (andJ taken down."

171.Storm Duncan, managing director of Credit Hohengarten i1320 & Ex. 289, CSSU

Suisse and part of Google's YouTube 001863, at CSSU 001957. acquisition due dilìgence team, wrote in hand-written notes that "60% is premium," Hohengarten i1362 & Ex. 328 (Duncan which he defined as "Professionally 30(b)(6) Dep.) at 199:24-200:5,207:25- Produced" and categorized as "Legitimate" 210:13. and "Ilegitmate."

172.Credit Suisse used Google's analysis of Hohengarten i1362 & Ex. 328 (Duncan Y ouTube videos as an input to its valuation 30(b )(6) Dep.) at 90:23-91 :4.

of You Tube.

173. Credit Suisse's valuation model for Y ouTube Hohengarten '1 323 & Ex. 292, CSSU estimated that 60% of the video views on 004069, at CSSU 004071. Y ouTube were of "premium" content.

174. Credit Suisse's valuation model for Y ouTube Hohengarten i1323 & Ex. 292, CSSU estimated that in 2007, only 10% of the video 004069, at CSSU 004071.

views of premium content would be of content that was authorized to be on YouTube.

175. Credit Suisse prepared a presentation Hohengarten i1324 & Ex. 293, CSSU

regarding its valuation of You Tube and 003560, at CSSU 003561-86. presented it to Google's board of directors on October 9,2006, before the board voted to Hohengaiien i1362 & Ex. 328 (Duncan acquire Y ouTube. 30(b)(6) Dep.) at 117:11-119:15.

Hohengarten i1361 & Ex. 327 (Drummond Dep.) at 15:20-16:2.

40 176.Credit Suisse's October 9,2006 presentation Hohengarten i1324 & Ex. 293 CSSU to Google's board of directors estimated that 003560, at CSSU 003570.

"60% of total video streams on (the Y ouTube J website are 'Premium, '" and that Hohengarten i1375 & Ex. 341 "10% of premium content providers allow (Kordestani Dep. at 109:24-110:22). (Y ouTube J to monetize their content in 2007E." Hohengarten i1362 & Ex. 328 (Duncan 30(b)(6) Dep. at 158:13-159:1).

177 .An October 8, 2006 draft of Credit Suisse's Hohengarten i1325 & Ex. 294 CSSU presentation defined "(p Jremium content (a J s 003326, at CSSU 003335. copyrighted content such as movies/TV trailers, music videos, etc."

178.The October 9,2006 Credit Suisse Hohengarten i1324 & Ex. 293 CSSU presentation emphasized the "tremendous 003560, at CSSU 003569 (emphasizing growth" in Y ouTube' s userbase and its "loyal YouTube's "tremendous growth" and global following." "loyal global following").

179. The October 9,2006 Credit Suisse Hohengarten i1324 & Ex. 293 CSSU presentation projected that there would be 003560, at CSSU 003570 (45% of280 126 billion views of Y ouTube watch page bì1ion; 55% of280 bì1ion). views in 2007, and more than 154 billion

views of You Tube home and search results pages in 2007.

180'in the October 9, 2006 presentation, Credit Hohengarten i1324 & Ex. 293 CSSU Suisse advised Google's board that the base 003560, at CSSU 003573. case financial value of Y ouTube was $2.7 bì1ion, derived from Google's ability to monetize YouTube's user base in the future.

181. The October 9, 2006 presentation informed Hohengarten i1324 & Ex. 293 CSSU

Google's board that "60% of total video 003560, at CSSU 003570; see also id. at streams on yellow (their code name for the CSSU 003569 (lìsting "( u Jnceiiain legal YouTube websiteJ are 'Premium.'" issues" under "(iJssues for ( c J onsideration").

Hohengarten i1362 & Ex. 328 (Duncan 30(b)(6) Dep.) at 24:22-25:16 ( confirming that "Yellow" was the code name for Y ouTube and "green" was the code name for Google).

182.In the October 9, 2006 presentation Credit Hohengarten i1324 & Ex. 293, CSSU Suisse advised Google's board that Credit

41 Suisse's valuation "(aJssumes 10% premium 003560, at CSSU 003570. content providers allow (Y ouTube J to monetize their content in (fiscal year 2007)."

en' , A L -l . T (' uul uue ::. '- tV ~lY n()()uip '- JYUbilt T 1iihilìtv

,. , ~ . T T 183. On October 4, Google sent Y ouTube a tenn Hohengarten i1326 & Ex. 295 CSSU sheet offering to buy Y ouTube for $1.65 002982, at CSSU 002985-86. billion in Google stock; in the term sheet, Google proposed that Y ouTube and its stockholders "indemnify and hold Google hannless for any losses and liabilìties (including legal fees) relating to copyright lawsuits fied against the Company or Google" for up to 12.5% of the purchase price, which was to be held in escrow.

184.During negotiations, YouTube pushed for a Hohengarten i1388 & Ex. 354 (Yu Dep.) smaller escrow amount. at 107:4-108:3.

185.The October 9,2006 Google/YouTube Hohengarten i1335 & Ex. 303, TP000055, merger agreement included indemnification at TP000079-80 (i12.9). and escrow provisions providing that 12.5

percent of the consideration Google paid for Hohengarten '1348 & Ex. 314 (Schmidt Y ouTube would he held in escrow to satisfy Dep.) at 65: 1 0-65:23 (testifying that he is

legal claims made against Y ouTube and "aware of what I'm going to call a Google, including copyright infringement holdback. . . that. . . includes areas of claims. copyright" and that the Google board of directors discussed the "holdback" around the time of the acquisition).

186.In April 2007, Defendants executed an Hohengaiien i1331 & Ex. 299, SC amendment to the Google/Y ouTube merger 010022, at SC 010023. agreement to correct a "scrivener's error"; the correction increased the proportion of Hohengarten i1361 & Ex. 327 the escrowed merger consideration that (Drummond Dep.) at 89:7-92:6. could be used to cover copyright infringement claims brought against Hohengarten i1333 & Ex. 301, Defendants in connection with the AC007823, at AC007824. Y ouTube website.

42 Concerning

187.The press release issued by Google Hohengarten i171 & Ex 68, G00001- announcing the acquisition of Y ouTube 03548410, at GOOOO 1-03 54841 O. stated: "With Google's technology, advertiser relationships and global reach, Y ouTube wì1 continue to build on its success as one of the world's most popular services for video entertainment."

188.A September 14,2007 email from Google Hohengarten i172 & Ex. 69, G00001- vice president of content partnerships David 02021241, at GOOOO 1-02021241. Eun to Google sales director Suzie Reider,

YouTube's Chief Marketing Officer, Eun Hohengarten i1346 & Ex. 312 (c. Hurley

stated: "If we think back to last Nov. you Dep.) at 254:11-255:22. are chad (HurleyJ, your head is spinning and Eric Schmidt, CEO of the most Hohengarten i13 82 & Ex. 348 (Reider powerful company in the world tells you Dep.) at 8:24-12:24. your only focus is to grow playbacks to 1B/day. . .. that's what you do."

189. Google did not apply Google Video's Hohengarten i1393 & Ex. 356 at i1i114-15 earlier polìcy of proactively reviewing for (Declaration of Steve Chen dated January copyright infringement to Y ouTube; 5,2007). instead, Google adopted YouTube's polìcy of allowing substantially all infringing Hohengarten i1385 & Ex. 351 (Schaffer video to remain freely available on Dep.) at 183:7-184:3. Y ouTube until a copyright owner could detect it and send a takedown notice. Hohengarten i174 & Ex. 71, G00001- 01271624, at G00001-01271624.

See also Hohengarten i188 & Ex. 85 G00001-00827503, at G00001- 00827503 ("(TJhe general YT polìcy has shifted to be, 'Never polìce anything pro- actively, all content reviews should be reactive. "'). 190'in an October 13,2006 email to other Hohengarten i175 & Ex. 72 G00001- Google employees, Google Video Product 03383629, at GOOOOl-03383629. Manager Hunter Walk provided a lìnk to a Colbert Report clip on Y ouTube.

43 191. In a March 9, 2007 email to Y ouTube Hohengarten i176 & Ex. 73, GOOO01- employees, a Google employee provided a 01364485, at GOOO01-01364485. lìnk to a "Funny south park" video on YouTube.

192.In a March 15, 2007 instant message Hohengarten i1212 & Ex. 200, GOOO01- conversation Y ouTube product manager 07738864, at 2-3 & at GOOO01- Virginia Wang (IM user name 07738864. missveeandchip) discussed her attempts to find videos on Y ouTube to put in a "cute Hohengarten i1199 & Ex. 375, GOOO01- video" category and stated that "it was hard 06669529, at G00001-06669529 (noting to find anything i thought was vote worthy. that missveeandchip is Virginia Wang's . . that we could use. . . since so much of it IM user name). involves copywritten stuff." In an email the same day, Wang stated, "we're running into Hohengarten i177 & Ex. 74, GOOO01- issues finding enough videos because they 07155101, at GOOO01-07155101. have so many copyright violations." Hohengarten i1378 & Ex. 344 (Liu Dep.) at 60:6-61:8 (testifying to Virginia Wang's job description).

193.In a March 23, 2007 email to other Google Hohengarten i178 & Ex. 75, GOOO01- employees, a Google employee provided a 00217336, at GOOO01-00217336. lìnk to a Daily Show clìp on Y ouTube.

194.In an April 2, 2007 email, Google employee Hohengarten i1 80 & Ex. 77, GOOOO 1- Matthew Arnold wrote to two other Google 05154818, at GOOO01-05154818. employees (Crosby Freeman and Hugh Moore), highlìghting a "Daily Show" clip on YouTube.

1 95.A draft May 2007 presentation prepared by Hohengarten i181 & Ex. 78, GOOO01- Shashi Seth, YouTube's head of 05943950, at GOOO01-05943951-55. monetization, and distributed to Google vice president of content partnerships David Hohengarten i1387 & Ex. 353 (Seth Dep.) Eun, YouTube co-founder Chad Hurley, at 15:15-17:2 (testifying to Shashi Seth's

and others, reported that. of You Tube job title), 157:13-24. searches are directed toward music videos, movies, celebrities, and TV programs, but See also Hohengarten i182 & Ex. 79,

that only _ of videos watched by users G00001-01016844, at GOOO01- consisted of authorized professional 01016844 (statement from YouTube head content. The same presentation stated that of monetization Shashi Seth that based on "( u Jsers are searching for lots of things, but an analysis of the top search queries on primarily for premium content." Y ouTube, ". fall under entertainment - not surprising.").

See also Hohengarten i183 & Ex. 80,

44 G00001-00225766, at GOOO01- 00225767 (analysis by Google executive Alex Ellerson of the top 100 search queries, determining that approximately . of the queries were for premium content, and that of the queries for premium content, _ of those were for "Entertainment TV.").

196.An analysis by Google in May 2007 Hohengarten i1 84 & Ex. 81, GOOOO 1- showed that while the average Y ouTube 02414976, at GOOO01-02414980. video was viewed 1 10 times, videos that had been removed for copyright Hohengarten i185 & Ex. 82, GOOO01- infringement were viewed an average of 03241189, at G00001-03241189; see 765 times. also id. at G00001-03241191 (showing that premium content is selected by users as "favorite" content an average of" times per video, while original user- generated content is selected as "favorite" an average of only. times).

Hohengarten i1387 & Ex. 353 (Seth Dep.) at 143:17-144:23,146:12-150:18.

197.In a June 13,2007 email, YouTube head of Hohengarten i186 & Ex. 83, GOOO01- monetization Shashi Seth stated that based 00747816, at GOOO01-00747816. on his review ofthe top 10,000 search queries on YouTube: "(CJonsistent with my Hohengarten i1387 & Ex. 353 (Seth Dep.) earlier findings, music video (being at 103:12-20. searched mostly by artist names. . .) are being searched a lot, as are TV shows, . . . and celebrities. . . . Going down the lìst of 10k (search tennsJ, it seems that the queries do reflect the popularity of the artists, songs, celebrities. . . Music, TV Shows, Movies, Celebrities, Sports, etc. are definitely our top categories to attack;" Mr. Seth further stated that "Searches do reflect popularity pretty well."

198.A June 2007 "YouTube Profile Study" Hohengarten i187 & Ex. 84, GOOO01- showed that. of all Y ouTube users and 02201131, at GOOO01-02201132.0002 . of users who visit YouTube daily (study index stating that Table 31 is about watch "television shows" on Y ouTube. the "Kind of Video" users "Typically

45 Watch"), G00001-02201132.0061 (Table 31 page containing percentage totals for YouTube users generally); G00001- 02201132.0062 (Table 31 page containing percentage totals for users who visit Y ouTube with varying frequencies).

199.In a July 18, 2007 email YouTube Hohengarten i188 & Ex. 85, G00001- employee Julie Havens wrote: "A trend we 00827503, at G00001-00827503. see is that people upload copyrighted videos to their private videos (which are not reviewed unless flagged), and then invite large numbers of people to view the video which bypasses our copyright restrictions."

200.A February 19, 2008 Google presentation Hohengarten i189 & Ex. 86, GOOOOl- titled "EMG Deal Review -- YouTube & 01998134, at G00001-01998136. South Park Studios" stated that based on Y ouTube search "query data," there was "proven interest on Y ouTube" for clips of South Park; the presentation further stated -that South Park was 20 1.In March 2008, Y ouTube co- founder Chad Hohengarten i173 & Ex. 70, G00001- Hurley sent an email to Google executives 01395950, at G00001-01395950. Susan Wojcicki and Google Video Product Manager Hunter Walk stating that "three Hohengarten i1346 & Ex. 312 (C. Hurley weeks ago Eric shifted his thinking on Dep.) at 253:18-254:5. YouTube's focus. So, since that time we have rapidly been redirecting our efforts from user growth to monetization."

202.A YouTube user survey from April 2008 Hohengarten i190 & Ex. 87, G00001- showed that. of users watch music 00829227, at G00001-00829229.0002. videos on Y ouTube, . of users surveyed

watch comedy on YouTube,. of users

surveyed watch "Full length TV programs"

on YouTube, and. of users watch "Full length movie( s J" on Y ouTube.

46 T "" , r .~ , ". .0, .y () 11' 1'11hR 1" '1( ~q -q ''' 'q 11 T " .... T Vl(lvVill '- .C'.

T "r." fT" .. 203.From November 2006 until February 2007, Hohengarten i1348 & Ex. 314 (Schmidt Viacom negotiated with Google over a Dep.) at 173:22-174:23. possible "content partnership" agreement under which Viacom would lìcense some of Hohengarten i191 & Ex. 88, GOOO01- its copyrighted works to appear on 0079777 4, at GOOOO 1-0079777 4. YouTube. Hohengarten i1195 & Ex. 371, G00001-01529251, at GOOO01- 01529251.

Hohengarten i120 1 & Ex. 382, G00001-08050272, at GOOO01- 08050272.

204. During the negotiations, Viacom made clear Hohengarten i1270 & Ex. 244, that without such a lìcense, the appearance VIA01475465, at VIA01475465-76.

of Via com works on YouTube was unauthorized.

205.Viacom also insisted on compensation for Hohengarten i192 & Ex. 89, GOOO01- past infringement of its works as part of any 05942431, at GOOOO 1-05942431. license.

206.Google offered a package that it valued at Hohengarten i193 & Ex. 90, GOOO01- more than $_ for a content 02057400, at GOOO01-02057400. lìcense from Viacom.

207.Google's offer and term sheet included an Hohengarten i1271 & Ex. 245, explìcit guarantee that Google would use VIA00727696, at VIAOO727696. digital fingerprinting technology to prescreen all uploads to Y ouTube and block Hohengarten i194 & Ex. 91, GOOOO 1- any videos from Viacom works not lìcensed 00984825, at GOOO01-00984837. under the agreement.

208. Ultimately negotiations broke down and Hohengarten i1270 & Ex. 244, Defendants never obtained a lìcense from VIA01475465, at VIA01475465-76. Viacom.

209.After the parties' lìcense negotiations ended Hohengarten i1270 & Ex. 244, in impasse, Viacom's General Counsel, VIA01475465, at VIA01475465-76. Michael Fricklas, wrote Google on

47 February 2,2007, pressing Defendants to use fingerprinting technology to prevent

infringement of Via com's works, and offering to have Viacom technology experts cooperate with Defendants as needed to that end.

210.0n February 2,2007, Viacom issued a Hohengarten i1270 & Ex. 244, request to Y ouTube to remove over VIA01475465, at VIA01475465. 100,000 videos from the YouTube website.

211. On February 2, 2007, after Viacom Hohengarten i1192 & Ex. 189, requested that Defendants remove over GOOOO 1-00746412, at GOOOO I- 100,000 videos from the YouTube website, 00746412. Chris Maxcy stated that he would provide Viacom with access to a new search tool that was "still in alpha" to assist Viacom in taking down content from the Y ouTube website.

212. On February 2,2007, Maxcy agreed to Hohengarten i1273 & Ex. 383, speak to a technical team at Viacom about VIAl7716283, at VIA17716284-85. the new takedown tool by phone on February 5, 2007.

213.0n February 5, 2007, Maxcy cancelled the Hohengarten i1273 & Ex. 383, scheduled conference call with Viacom's VIAI7716283, at VIAI7716283. technical team and informed Adam Cahan that Defendants would not provide Viacom with access to the new takedown tool without a content partnership deaL.

214.0n February 6,2007, instead of providing Hohengarten i195 & Ex. 92, GOOOOl- Viacom with access to the new takedown 00746418, at GOOOOI-00746418. tool, Maxcy provided Viacom with access to YouTube's Content Verification Hohengarten i196 & Ex. 93, GOOOOl- Program, a system that had been in place 00751570, at GOOOOI-0075l570. for nearly a year and allowed content owners to check boxes to designate Hohengarten i197 & Ex. 94, GOOOOl- individual videos for take down. 00869300, at GOOOOl-00869300.

See also Hohengarten i1394 & Ex. 357 (Declaration of Zahavah Levine dated January 5,2007) at i114.

See also Hohengarten i1309 & Ex. 281 (Y ouTube page entitled "Content

48 Verification Program").

See also Hohengarten i131 0 & Ex. 282 (Y ouTube "Copyright Infringement Notification" page lìnked to from Y ouTube "Content Verification Program" page as "instructions" for submitting "removal requests" through Y ouTube' s Content Verification Program).

215.The Content Verification Program is Hohengarten i1394 & Ex. 357 separate from Google's audio and video (Declaration of Zahavah Levine dated fingerprinting tools and does not include January 5,2007) at i114 ("We have access to those tools. even created a content verification program. . . that enables content owners to search for their content on the site. The tool allows content owners to easily notify us that they wish specific content to be removed simply by checking a box.").

Hohengarten i13 1 8 & Ex. 388 (Y ouTube page entitled "Y ouTube Content ID System") (distinguishing "content verification program" from "audio ID" and "video ID").

Hohengarten i1309 & Ex. 281 (Y ouTube page entitled "Content Verification Program") (describing content verification program).

Hohengarten i114 7 & Ex. 144 GOOOO 1-0 1511226, at GOOOO 1- 01511226.

216.In a February 15, 2007 email, Google vice Hohengarten i1147 & Ex. 144, president of content partnerships David Eun GOOOO 1-0 1511226, at GOOOO 1- stated that Y ouTube' s "CYC tools," 01511226. including an "Audio fingerprinting system whereby the content partner can send 'reference fingerprints' to Audible Magic's database," "are now live as well and are only offered to partners who enter into a

49 revenue deal with us."

217.In a February 16, 2007 email, Google Vice Hohengarten i120 1 & Ex. 382, President and General Counsel Kent GOOOOI-08050272, GOOO01- Walker informed Viacom General Counsel 08050272. Michael Fricklas and NBC General Counsel Rick Cotton that although Y ouTube was Hohengarten i1371 & Ex. 337 (K. responding to takedown notices and had Walker Dep.) at 8:2-9:23 (testifying to implemented "automated filtering" in the Kent Walker's job title). fonn of "a unique hash" that "block( s J any attempt to re-upload (J identical video files," Y ouTube had agreed to provide "audio fingerprinting technology services"

only to a "handful of partners," and would not provide audio fingerprinting to Viacom

or NBC.

218. Instead of agreeing to provide Viacom and Hohengarten i120 1 & Ex. 382, NBC with audio fingerprinting, Walker GOOOOI-08050272, at GOOO01- instead offered to speak with Viacom and 08050272. NBC about possibly providing them with access to a "metadata search tool" that enables users to "define search tenns via XML feeds and automatically and regularly receive search results matching the defined search tern1s."

219.0n June 28,2007 Donald Verrì1i, then a Hohengarten i1406 & Ex. 369 (2007- partner at Jenner & Block, counsel for 06-28 Verrì1i to Ouweleen and Kramer) Viacom, sent a letter to Mark Ouweleen of at 1-2. Bartlìt Beck Herman Palenchar & Scott

LLP and David Kramer of Wilson Sonsini Goodrich & Rosati, counsel for Defendants. The letter highlìghted ongoing infringement on Y ouTube of many Viacom works, reiterated that Viacom had not authorized the upload of these works to Y ouTube, and demanded their removaL.

220.0n June 29,2007 Mark Ouweleen Hohengarten i1407 & Ex. 370 (2007- responded to Donald Verrì1i's June 28, 06-29 Ouweleen to Verrilli) at 1-2. 2007 letter. In his response Ouweleen represented that Y ouTube would not use a

lìst of Via com works to locate future infringing videos on Y ouTube and stated:

50 "If in the future someone posts a video Paramount claims to infringe a copyright on one of those movies, and Paramount would lìke it removed, Paramount can use the Content Verification Program tools or send a DMCA takedown notice." The letter did not offer Viacom access to any digital fingerprinting technology or any YouTube- provided tool other than the Content Verification Program tool.

221.0n February 20,2008, Google executed an Hohengarten i198 & Ex. 95, GOOOOl- agreement with Viacom under which 02244041, at GOOOO 1-02244041. Google was, for the first time, oblìgated to implement digital fingerprinting to protect against infringement of Viacom' s copyrighted works on Y ouTube.

222. Defendants did not implement digital Hohengarten i13 & Ex. 2 (Solow Decl. fingerprinting to prevent the infringement i1i129). of Viacom' s copyrighted works on the YouTube website until May 2008.

223. Beginning in April 2006, the Motion Hohengarten i1367 & Ex. 333 (Garfield Picture Association of America ("MP AA"), Dep.) at 14:14-15:4,15:10-12 ("there an organization that advocates for all movie was a lot of copyrighted content on the studios, including Paramount Pictures site that was owned or controlled by the Corporation, engaged in negotiations with motion picture studios"). YouTube in order to obtain YouTube's cooperation in preventing infringement of Hohengarten i1383 & Ex. 349 the copyrighted works of the MPAA's (Robinson Dep.) at 23:12-24:10 members, including Paramount. (testifying that the MPAA represents movie studios, including Paramount).

224. The MP AA was represented in the Hohengarten i1367 & Ex. 333 (Garfield negotiations by its Executive Vice President Dep.) at 13:16-15:4. and Chief Strategic Offcer.

225.The negotiations between the MPAA and Hohengarten i1367 & Ex. 333 (Garfield YouTube were about encouraging YouTube Dep.) at 14:19-15:4 ("The discussion

51 to remove infringing content belonging to was about encouraging Y ouTube to do MP AA members, and "relatedly integrating two things: deal with the content that filtering software that would address that we identified on the site that was copyrighted content." copyrighted, infringement content from the motion picture studios; and two, and relatedly integrating filtering software that would address that copyrighted content").

226. After months of discussions, YouTube Hohengarten i1367 & Ex. 333 (Garfield informed the MP AA that it refused to work Dep.) at 28:2-30:3,53 :4-7 ("for those with the MP AA to utilìze or even test companies who were not and did not digital fingerprinting and filtering develop a lìcensing agreement with technologies because the rampant piracy on Google, they weren't going to be doing Y ouTube was acting as a "major lure" for this sort of a pilot initiative or YouTube's users, drawing them to the site. filtering") .

227.After Google's acquisition of You Tube was Hohengarten i1341 & Ex. 307, announced, on October 13, 2006, the MPAAOI2777, at MPAA012777. MP AA sent a written proposal to Defendants callng for cooperation and Hohengarten i1367 & Ex. 333 (Garfield testing of filtering technologies, including Dep.) at 32: 15-34:2. the technology of a company called Audible Magic; the MP AA agreed to pay for the test.

228.0n November 9,2006, the MPAA Hohengarten i1342 & Ex. 308, transmitted another written proposal to MPAAOI2806, at MPAA012806. Defendants calling for cooperation and testing of filtering technologies, including Hohengarten i1367 & Ex. 333 (Garfield Audible Magic technology; the MP AA Dep.) at 41:14-46:25. again agreed to pay for the test.

229. Google did not respond to the MPAA's Hohengarten i1367 & Ex. 333 (Garfield proposal until early 2007, when Google Dep.) at 52:7-53:7. rejected cooperation with the MP AA and its member studios, and rejected the deployment of filtering to prevent the uploading of the studios' works in the absence of the studios executing a licensing and revenue sharing agreements with Google.

52 iv. DEFENDANTS' DIRECT FINANCIAL BENEFIT FROM INFRINGEMENT

., '1.1' m m' 'T (' Of '- OUl uoes -0' iII::ritv "

n. -1. T T T' i 230.A draft 2007 strategy document from Hohengarten i11 07 & Ex. 104, Google's company wide monetization team G00001-00330654, at G00001- noted that "pornographic and copyright 00330658. infringed content" were "among the

primary drivers of You Tube traffic"; the document further noted that "(b Jy developing and (sic J audience following the users first, Y ouTube has created advertiser and monetization value."

231. In a draft July 2006 presentation, Y ouTube Hohengarten i11 08 & Ex. 105, co-founder Chad Hurley stated that G00001-05164894, at G00001- Y ouTube "provide( s J the best experience 05164894. on the Intemet for both user-generated and professional content," and he described YouTube's growth in tenns ofthe growth

in the number of videos being watched every day, the number of unique users on Y ouTube, and the "amount of time each of the 20M users spends daily on YouTube."

232.Wendy Chang, a Google finance manager, Hohengarten i1354 & Ex. 320 (Chang stated in her deposition that "Advertisers Dep.) at 7:18-10:3 (testifying to Wendy want eyeballs. . . . so you can't make Chang's job title), 134:3-7. money from the advertisers unless you have the users, and you're only going to have -- have users if you have the right content."

233.In notes from a meeting that occurred on Hohengarten i11 09 & Ex. 106, October 12,2006, Google executive Susan G00001-00330681, at G00001- Wojcicki stated: "Interesting lesson from 00330682. Y ouTube and Google Print, we always need to be able to rely on DMCA . . . Focus on the users and get the traffic. . .. Be comprehensive: index everything. . . YouTube as well--opt out, DMCA afterward for takedown . . . Then you have audience, and monetization wì1 follow."

234.In her deposition, Google finance manager Hohengarten Decl. i1354 & Ex. 320 Wendy Chang agreed with the statement (Chang Dep.) at 138:15-139:12.

53 that "Then you have an audience and monetization will follow," adding that the

three core elements of You Tube's business model are "the audience, the content, and the monetization."

235.By October 2006, when Google's board of Hohengaiien i1324 & Ex. 293, CSSU directors approved the acquisition of 003560, at CSSU 003565-66. Y ouTube, the number of video views per month on Y ouTube had grown to 180 mì1ion.

" If . ~. . A' . . '- ouTube's I '- , ~ , T T ,. . 236.In his deposition, YouTube director of Hohengarten i1350 & Ex. 316 (B. finance Brent Hurley stated that YouTube's Hurley Dep.) at 53:4-56:4. "primary" business model was an advertising based business model and that the goal of such a business model is: "you get traffc, people come to you, the site, and then you can insert ads onto those pages and -- and earn revenue from those ads."

237.As a result of Go ogle's acquisition of Hohengarten i1400 & Ex. 363 (Google Y ouTube, Y ouTube director of finance Inc., S-3ASR Registration Statement Brent Hurley received Google shares worth (February 7,2007)) at 5 (page numbers approximately $10.74 million. at bottom center) (showing 22,334 shares issued to Brent Hurley).

Hohengarten i1306 & Ex. 278 (screenshot of Google's finance webpage showing that the high price for Google shares on November 13, 2006 was $481.03).

238.In a January 5,2007 declaration, YouTube Hohengarten i1393 & Ex. 356 co-founder Steve Chen stated that (Declaration of Steve Chen dated "Y ouTube earns revenue through the January 5,2007) at i119.

display of banner advertising on pages throughout our website. At various times, ads have appeared, for example, on our homepage, on pages displaying thumbnail images of clips responsive to users' search

54 queries, on pages displaying the most popular (or highest rated) clips for the day, and on 'watch pages. '"

239.In December 2005, YouTube began earning Hohengarten i111 0 & Ex. 107, advertising revenue from banner G00001-00633965, at GOOO01- advertisements displayed across the 00633965. Y ouTube website. Hohengarten i1111 & Ex. 108, GOOOOI-05920388, at GOOO01- 05920388-89.

240.Google's 2007 Annual Report stated "We Hohengarten i1315 & Ex. 287 (Google recognize as revenue the fees charged 2007 Annual Report) at 40. advertisers each time an ad is displayed on the Y ouTube site."

241.From early 2006 until January 2007, Hohengarten i1382 & Ex. 348 (Reider advertisements appeared on the "watch Dep.) at 50:23-53:5; 54:24-25. page" on Y ouTube for substantially all videos. Hohengarten i1346 & Ex. 312 (C. Hurley Dep.) at 226:5-14.

Hohengarten i1350 & Ex. 316 (B. Hurley Dep.) at 151 :1-23.

Hohengarten i1112 & Ex. 109, G00001-00763354, at GOOO01- 00763364-76.

Hohengaiien i1387 & Ex. 353 (Seth Dep.) at 25:18-26:15.

Hohengarten i1111 & Ex. 108, G00001-05920388, at GOOO01- 05920388-89.

Hohengarten i1398 & Ex. 361 (Defendants' Reponses and Objections to Plaintiffs' Second Set of Interrogatories, Interrogatory No.1) at 7.

242. The "watch page" is the page on the Hohengaiien i1346 & Ex. 312 (C. Y ouTube website where a user views a Hurley Dep.) at 113:25-114:6. video.

55 243.In an October 7,2006 email from YouTube Hohengarten i11 i 3 & Ex. 110, director of finance Brent Hurley to Google G00001-00658376, at GOOOOl- executive Sean Dempsey and Credit Suisse 00658376. managing director Stonn Duncan, Brent Hurley stated "Yes, we are running ROS Hohengarten i1350 & Ex. 316 (B. ads on both the search, watch and browse Hurley Dep.) at 155:21-157:16. pages." Hohengarten '1 362 & Ex. 328 (Duncan 30(b)(6) Dep.) at 10:18-11:10 (testifying to Storm Duncan's job title).

244.A "run of site" advertisement on YouTube Hohengarten i1382 & Ex. 348 (Reider is an advertisement the placement of which Dep.) at 282:20-283:5. is not guaranteed to the advertiser, and which Y ouTube can place anywhere on YouTube at YouTube's discretion.

245.Credit Suisse's October 9,2006 Hohengarten i1324 & Ex. 293, CSSU presentation to Google's board of directors 003560, at CSSU 003570. stated that Y ouTube watch pages constituted "45% of total page views," that "run of site ads" ran on YouTube's search and watch pages, and that "sponsored advertising" ran on YouTube's home page.

246.Credit Suisse's October 9, 2006 Hohengarten i1324 & Ex. 293, CSSU presentation to Google's board of directors 003560, at CSSU 003570 (estimating estimated that in 2007 there would be 280 billon total page views, 45% from approximately 126 billion Y ouTube watch watch pages). page views in 2007.

247. Prior to January 2007, when a viewer Hohengarten i1284 & Ex. 256, watched an infringing clip taken from VIA14375466, at VIA14375466. Viacom's hit program "South Park," an advertisement appeared next to the video and Y ouTube earned revenue from that advertising.

248.In January 2007, YouTube stopped Hohengarten i1398 & Ex. 361 advertising on substantially all watch pages. (Defendants' Reponses and Objections to Plaintiffs' Second Set of Interrogatories, Interrogatory No.1) at 7 ("(AJdvertisements. . . on watch pages associated with user-uploaded video clìps . . . ceased to appear on or about January 1, 2007").

56 See also infra SUF i1250 249. From January 2007 forward, Y ouTube has Hohengarten i1398 & Ex. 361 advertised only on those watch pages (Defendants' Reponses and Objections displaying content belonging to one of to Plaintiffs' Second Set of YouTube's "content partners." Interrogatories, Interrogatory No.1) at 7 ("( A Jdvertisements . . . on watch pages associated with user-uploaded video clips. . . ceased to appear on or about January 1,2007").

Hohengarten i1382 & Ex. 348 (Reider Dep.) at 50:23-54:25.

See infra SUF i1250. 250.A November 30, 2006 email from Google Hohengarten i1114 & Ex. 111, sales director Suzie Reider to Google GOOOOI-02656593, at GOOOOl- advertising executive Tim Annstrong 02656593. stated, "A major decision in the works that you should be aware of -- for legal reasons (that I don't fully understand what has changed, and our GC wì1 be back in SF on Monday to articulate) all ads/monetization on the watch pages for user generated content wì1 need to come down. This wì1 have a tremendous impact on inventory."

251. During the period when Y ouTube was Hohengarten i1284 & Ex. 256, advertising on substantially all watch pages, VIA14375466, at VIA14375466. advertisements regularly appeared on watch pages for Viacom's content, including Hohengarten i1276 & Ex. 248, works in suit in this action. VIA14375471, at VIA14375471.

Hohengarten i1277 & Ex. 249, VIA14375444, at VIA14375444.

Hohengarten i1278 & Ex. 250, VIA14375526, at VIA14375526.

Hohengarten i1279 & Ex. 251, VIA14375557, at VIA14375557.

Hohengarten i1280 & Ex. 252, VIA14375446, at VIA14375446.

252.Before and after January 2007, Defendants See supra SUF i1238. sold ads appearing on the Y ouTube

57 homepage. Hohengarten i1366 & Ex. 332 (Eun Dep.) at 315:14-316:14.

Hohengarten i1112 & Ex. 109 G00001-00763354, at GOOO01- 00763364-76 (chart of advertising revenue lìsting advertisements by site page, referring to "home right" as the right side ofYouTube's home page).

Hohengarten i1350 & Ex. 316 (B. Hurley Dep.) at 154:25-155:4.

Hohengarten i1354 & Ex. 320 (Chang Dep.) at 185:17-185:25.

Hohengarten i1375 & Ex. 341 (Kordestani Dep.) at 174:14-175:12.

Hohengarten i1115 & Ex. 112, G00001-02338150, at GOOOOl- 02338170.

253.The home page on YouTube is the page Hohengarten i1379 & Ex. 345 (Maxcy that first appears when a user accesses Dep.) at 43:9-11. www.youtube.com over the Internet.

254. Before and after January 2007, Defendants Hohengarten i1354 & Ex. 320 (Chang sold ads that appear on Y ouTube search Dep.) at 185:5-186:10. results pages. Hohengarten i1376 & Ex. 342 (Levine Dep.) at 271:11-18.

Hohengarten i1111 & Ex. 108, G00001-05920388, at GOOOOl- 05920388-89.

Hohengarten i1115 & Ex. 112, G00001-02338150, at GOOOOl- 02338170.

255.Search results pages on YouTube are the Hohengarten i1346 & Ex. 312 (C. pages where Y ouTube displays results of Hurley Dep.) at 114:23-115:8. user searches using Y ouTube' s search function. Hohengarten i1313 & Ex. 285 (screenshot of search results pages).

58 Hohengarten i1393 & Ex. 356 (Declaration of Steve Chen dated January 5,2007) at i15.

256.Advertisements on Y ouTube search results Hohengarten i1116 & Ex. 113, pages were the largest revenue source for GOOOOI-02439050, at GOOO01- Y ouTube in 2007. 02439050-53.

Hohengarten i1117 & Ex. 114, GOOOOI-00255239, at GOOO01- 00255240.

Hohengarten i1118 & Ex. 115, GOOOO 1-0023 7661, at GOOOO 1- 00237662.

257.A Y ouTube monetization planning Hohengarten i1119 & Ex. 116, document from May 2007 prepared for GOOOOI-01295801, at GOOOOl- Google CEO Eric Schmidt states: "From a 01295802. monetization perspective, the largest opportunity for revenue resides on the YouTube search pages."

258. YouTube enables advertisers to target their Hohengarten i1376 & Ex. 342 (Levine advertisements on YouTube's search pages Dep.) at 273:15-274:25. to the search tenns entered by a Y ouTube user. Hohengarten i1314 & Ex. 286.

Hohengarten i1382 & Ex. 348 (Reider Dep.) at 199:24-200:12.

Hohengarten i1378 & Ex. 344 (Liu Dep.) at 24:3-26: 17.

259.When a YouTube user searches YouTube Hohengarten i1378 & Ex. 344 (Liu for Viacom content, Y ouTube displays Dep.) at 24:3-26:17; 181:16-182:20; advertising next to the search results for 185 :24-186:7. that content. Hohengarten i1287 & Ex. 259, VIA14375204, at VIA14375204.

Hohengarten i1313 & Ex. 285, at 3, 7, 9.

Hohengarten i1288 & Ex. 260,

59 VIA14375664, ~ VIA14375664.

Hohengarten i1289 & Ex. 261, VIA14375611, at VIA14375611.

Hohengarten i1290 & Ex. 262, VIA14375671, at VIA14375671.

Hohengarten i1291 & Ex. 263, VIA14375620, at VIA14375620.

Hohengarten i1292 & Ex. 264, VIA14375635, at VIA14375635.

Hohengarten i1293 & Ex. 265, VIA14375638, at VIA14375638.

260.Before and after January 2007, Defendants Hohengarten i1393 & Ex. 356 also sold advertisements on the browse (Declaration of Steve Chen dated pages of the Y ouTube website. January 5, 2007) at i119.

Hohengarten i1112 & Ex. 109, G00001-00763354, at GOOO01- 00763364.

Hohengarten i1350 & Ex. 316 (B. Hurley Dep.) at 152:21-152:24.

Hohengarten i1113 & Ex. 110, GOOOOI-00658376, at GOOOOl- 00658376.

261. The browse pages on Y ouTube are the Hohengarten i1363 & Ex. 329 (Dunton pages where Y ouTube suggests videos for Dep.) at 79:5-10. users to watch, including "Most Viewed." "Top Favorites," "Most Discussed," Hohengarten i1346 & Ex. 312 (C. "Recent Videos," and "Top Rated." Hurley Dep.) at 115:19-116:9.

262.Before and after January 2007, YouTube Hohengarten i1115 & Ex. 112, has also sold advertising on the video GOOOOI-02338150, at GOOO01- upload page, the page where users upload 02338182. videos to Y ouTube. Hohengarten i1120 & Ex. 117, G00001-08030008, at GOOO01- 08030009.

60 263.A "house advertisement" on YouTube is an Hohengarten i1182 & Ex. 179, advertisement that appears on a Y ouTube G00001-02034326, at GOOO01- page, promotes some other aspect of 02034326. Y ouTube, and directs the user to the corresponding Y ouTube page.

264. Even after Y ouTube decided to limit its use Hohengarten i1182 & Ex. 179, of advertisements on watch pages, G00001-02034326, at GOOO01- Y ouTube placed "house advertisements" on 02034326. watch pages, without lìmiting these advertisements to watch pages of Hohengarten i1183 & Ex. 180, authorized content. G00001-06811230, at GOOO01- 06811230.

265.House advertisements have appeared on Hohengarten i1286 & Ex. 258 watch pages of Via com-owned content that (screenshot, taken September 14, 2009, was uploaded without Viacom's consent, of You Tube watch page titled "Kanye including as recently as September 14, West shits on Taylor Swift - 2009 2009. VMA's" showing a house advertisement in the upper right corner).

Hohengarten i13 78 & Ex. 344 (Liu Dep.) at 177:25-179:2 (testifying that Liu Dep. Ex. 11 appears to be a Y ouTube watch page and that the box in the upper right corner containing the text "Gundam 00" appears to be a house ad for Y ouTube.com/shows).

266.From 2006 until today, if a user went to See supra SUF i1i1238-241, 247, 251, Y ouTube looking for clips that infringe 252,254,256-261,265. Viacom's copyrights in popular shows such as "South Park," "The Daily Show With Jon Stewart," or "The Colbert Report," either via YouTube's home page, search results page, or browse page, Y ouTube earned revenue from the ads served to that user on those pages.

61 V. DEFENDANTS' RIGHT AND ABILITY TO CONTROL INFRINGEMENT

267.YouTube's Terms of Use have always Hohengarten i1121 & Ex. 118, given Y ouTube sole discretion to remove G00001-00421229, at G00001- any video from Y ouTube for any reason 00421231 (YouTubeTennsofUse, and to tenninate any Y ouTube user account dated February 3, 2006 per metadata). for any reason. Hohengarten i1122 & Ex. 119, GOOOOI-02826891, at G00001-

02826893 (YouTube Tenns of Use, dated March 14, 2006 per metadata).

Hohengarten i1123 & Ex. 120, G00001-00824855, at G00001-

00824857 (YouTube Tenns of Use, dated July 26, 2006 per metadata).

Hohengarten i1124 & Ex. 121, GOOOOI-02829970, at GOOOOl-

02829972 (YouTube Terms of Use, dated August 18,2006 per metadata).

Hohengarten i1196 & Ex. 372 GOOOO 1-02316969, at GOOOO 1-

02316970 (YouTube Terms of Use, dated November 20, 2006).

Hohengarten i1394 & Ex. 357 (Declaration of Zahavah Levine dated January 5, 2007) at Ex. A i15.C.

Hohengarten i1127 & Ex. 124, GOOOOI-07056597, at G00001-

07056600 (YouTube Terms of Use, dated February 26,2007 per metadata).

Hohengarten i1128 & Ex. 125, GOOOOI-01232697, at GOOOOl-

01232700 (YouTube Terms of Use, dated June 19,2007 per metadata).

268.In her deposition, YouTube content review Hohengarten i1368 & Ex. 334 (Gì1ette manager Heather Gillette testified that "The Dep.) at 110:25-111:3.

62 tenns of use states specifically that we have the right to remove content at our sole discretion for any reason whatsoever."

269.Untillate November 2005, just before Hohengarten i1350 & Ex. 316 (B.

YouTube's offcial launch, YouTube Hurley Dep.) at 66:17-67:3,137:7-12, employees reviewed thumbnail images for 164:3-12. every video uploaded to Y ouTube and removed videos that violated YouTube's Hohengarten i119 & Ex. 16, GOOOO 1-

terms of use, including for reasons of 00629095, at GOOOOI-00629095. violence, pornography, and copyright infringement.

270.After November 2005, YouTube employees Hohengarten i13 50 & Ex. 316 (B. stopped reviewing thumbnails of every Hurley Dep.) at 66:17-67:3,164:9-12. video uploaded to Y ouTube.

271.0n November 24,2005, YouTube director Hohengarten i119 & Ex. 16, GOOOO 1- of finance Brent Hurley instructed 00629095, at GOOOOI-00629095. Y ouTube employees to look for and remove some infringing material, such as Hohengarten i1 350 & Ex. 316 (B.

clips of "Family Guy, South Park, and full- Hurley Dep.) at 81 :5-82:2. length anime episodes."

272. Sporadically during 2005 and 2006, Hohengarten i1l29 & Ex. 126, Y ouTube employees proactively searched GOOOOI-02768034, at GOOO01- the Y ouTube site for infringing clips 02768034. belonging to certain content owners and removed thousands of such clips. Hohengarten i1368 & Ex. 334 (Gì1ette Dep.) at 46:20-47:17,54:2-63:23, 72:24-73:7.

Hohengarten i1130 & Ex. 127, GOOOOI-01027757, at GOOO01- 01027766.

Hohengarten i1363 & Ex. 329 (Dunton Dep.) at 163:5-14.

Hohengarten i1376 & Ex. 342 (Levine Dep.) at 211 :19-212:5.

Hohengarten i1385 & Ex. 351 (Schaffer Dep.) at 97:25-100:13,104:25-106:6.

273.When it was in YouTube's interest to do so, Hohengarten i1132 & Ex. 129, Y ouTube personnel manually screened GOOOO 1-0443 1 78 7, at GOOOO 1-

63 narrow subsets of Y ouTube videos to 04431787 (describing the "Y ouTube ensure that they did not infringe copyright. Director" program).

Hohengarten i1133 & Ex. 130, G00001-00509640, at G00001- 00509640 (showing that YouTube has proactively reviewed videos uploaded to Director Accounts for copyright infringement).

Hohengarten i1134 & Ex. 131, GOOOOI-00222797, at G00001- 00222797 (same).

Hohengarten i1135 & Ex. 132, GOOOOI-02754251, at G00001- 02754251 (describing the "User Partner Program").

Hohengarten i179 & Ex. 76, G00001- 03037036, at GOOOOI-03037043-44 (March 2007 Monetization Strategy presentation noting that the User Partner Program used "fingerprinting and manual-review" to "( e Jnsure that only original content can be monetized.").

Hohengarten i1136 & Ex. 133, GOOOOI-02027618, at G00001- 02027618.

Hohengarten i1185 & Ex. 182, GOOOOI-02866493, at G00001- 02866501, GOOOOI-02866503 (YouTube presentation about the User Partner Program noting that in considering applicants for the program YouTube employees should "(lJook for TV watermarks and other indicators," and detennine whether the user has videos "that are in a prohibited category").

Hohengarten i1187 & Ex. 184, GOOOOI-06361166, at GOOOOl- 06361173, G00001-06361175.

64 Hohengarten i1387 & Ex. 353 (Seth Dep.) at 17:17-24:11,34:4-35:12, 54:11-56:21,61:2-18,68:5-11

(describing several aspects of the User Partner Program, including human review).

Hohengarten i1131 & Ex. 128, G00001-01535521, at G00001- 01535521 (content review manager Heather Gì1ette stating: "we pro- actively screen any videos and/or users that we are highlighting on our 'honors' pages (most watched, most subscribed, most discussed, etc.) and remove, or restrict these videos/users such that they won't be on the site at all, or they won't be highlìghted if we deem the video as needing to be restricted.").

274. YouTube employed a technology called Hohengarten i1393 & Ex. 356 hash-based identification to prevent a user (Declaration of Steve Chen dated from uploading a video clìp to Y ouTube January 5, 2007) at i1l2. that is exactly identical in every respect to a video clips that YouTube had previously removed pursuant to a takedown notice.

275. Hash-based identification cannot prevent Hohengarten i1393 & Ex. 356 re-upload of the same infringing content to (Declaration of Steve Chen dated Y ouTube if the second video clip differs in January 5,2007) at i112. even the slìghtest degree (e.g., in length or resolution) from the first clip that was Hohengarten i1355 & Ex. 321 removed. (Chastagnol Dep.) at 56:2-22.

Hohengarten i1376 & Ex. 342 (Levine Dep.) at 254:24-255:11. 276.And even this minimal protection against Hohengaiien i1385 & Ex. 351 (Schaffer infringement generally was triggered only if Dep.) at 132:17-20.

65 a copyright owner first sent a takedown notice. Hohengarten i113 7 & Ex. 134 G00001-00561601, at G00001- 00561605.

, - . . y All I Jrlt- ':: Abilìtv ~ywUlU -0 to ()llt ~ ~. '- T" , T Ti , .L 277.YouTube has always had the abilìty to find See SUF infra i1i1278, 280, 300, 302, infringing clips after they are made 305; supra i1i1112, 113, 139, available for viewing on the Y ouTube website by searching for keywords associated with copyrighted content.

278. Viacom and other copyright owners use Hohengarten i1369 & Ex. 335 (Housley keyword searching to find videos that Dep.) at 36:22-37:8. infringe their copyrights on Y ouTube in order to send takedown notices. Hohengarten i13 & Ex. 2 (Solow Decl. i12).

279.However, until mid-2008, copyright holders Hohengarten i113 6 & Ex. 133 such as Viacom could search for infringing (Y ouTube Help page entitled "Solve a videos on YouTube only after YouTube Problem: Video not in search"). made the videos publicly searchable, resulting in inevitable delay before the Hohengarten i1138 & Ex. 135, copyright holders can search for and find G00001-08643428, at G00001- the infringing content and then send a 08643428. takedown notice.

280. Y ouTube has always had the abilìty to Hohengarten i1347 & Ex. 313 (Karim apply keyword searching or filtering Dep.) at 119:4-121:24 (testifying that (human or automated) to identify and block Y ouTube could have reviewed videos infringing videos before they are made before they were made publìcly available for viewing on Y ouTube. viewable, that it would have been a very simple change to do so, and that it was very lìkely that they did do so for some time).

Hohengarten i1256 & Ex. 238, JK00009130, at JK00009130 ("(WJe can always approve videos first BEFORE they are shown anywhere, that's a one-lìne code change.").

66 . .~. ~ . ~ , l'g1T" I r 1l1~C;1 R pfii"fll -i- e'Y LU co

. - .. T T T L 281.A digital fingerprint is a software-generated Hohengarten i1l40 & Ex. 136, digital identifier of the content in the audio G00001-02493069, at G00001- and/or video track of an audio-visual work. 02493070-71.

Hohengarten i1370 & Ex. 336 (Ikezoye Dep.) at 15:15-16:11.

Hohengarten i1395 & Ex. 358, at i1i13- 4.

Hohengarten i1396 & Ex. 359, at i1i14- 5.

282.Digital fingerprinting service providers Hohengarten i1370 & Ex. 336 (Ikezoye such as Audible Magic maintain reference Dep.) at 23:13-19. databases of the digital fingerprints of copyrighted works.

283.When a video is uploaded to a website such Hohengarten i1370 & Ex. 336 (Ikezoye as Y ouTube, digital fingerprinting Dep.) at 15:15-16:11. technology can take the digital fingerprint of the uploaded video and compare it to Hohengarten i1395 & Ex. 358, at i1i110- reference databases of fingerprints of 12. copyrighted works to determine whether there is a match. Hohengarten i1396 & Ex. 359, at i1i14- 6,10, 15.

Hohengarten i1355 & Ex. 321 (Chastagnol Dep.) at 88:18-25.

Hohengarten i1399 & Ex. 362 (July 27, 2007 Status Conference Transcript) at 17:2-5 ("(AJny video that gets uploaded basically gets filtered through the fingerprint database, and lìke the AFIS

that the FBI has, and if there's a hit, then within minutes the computer knows that and pulls it down.").

67 284. If there is a fingerprint match -- indicating Hohengarten i1395 & Ex. 358, at i111.

that the audio and/or video track of the uploaded video matches a copyrighted work Hohengarten i1396 & Ex. 359, at i1i115- in whole or in part -- then a website such as 19. YouTube can automatically discard the upload or take another action, such as flagging the video for review by an employee.

285.Computers can readily accomplìsh this Hohengarten i1395 & Ex. 358, at i111. fingerprint matching function so that infringing videos never go live on the site. Hohengaiien i1396 & Ex. 359, at i1i111- 12.

286.Audible Magic began providing audio Hohengarten i1370 & Ex. 336 (Ikezoye fingerprinting to clients in 2004. Dep.) at 11:15-19,109:14-25.

287.Audible Magic could have deployed its Hohengarten i1370 & Ex. 336 (Ikezoye audio fingerprinting services on Y ouTube Dep.) at 109:22-110:22. as early as February 2005, when YouTube was founded, and April 2005, when the Y ouTube website was launched in beta fonn.

288.By February 2006, Audible Magic was Hohengaiien i1396 & Ex. 359, at i121. conducting over five million fingerprint match requests, or "look ups," a day and Hohengarten i1370 & Ex. 336 (Ikezoye

could easily have handled tens of millions Dep.) at 21:21-22:7. of such requests.

289.At no time in YouTube's history have Hohengarten i1324 & Ex. 293 CSSU anywhere close to five mì1ion videos been 003560, at CSSU 003561, CSSU

uploaded to Y ouTube in a single day. 003565 ("Current number of videos uploaded daily: 100,000").

Hohengaiien i1140 & Ex. 137, GOOOOI-02930251, at GOOO01- 02930256 (stating that in March 2008 YouTube had "400,000+ uploads per day").

290.Between 2006 and mid-2009, Audible Hohengaiien i1370 & Ex. 336 (Ikezoye Magic had approximately 30 website Dep.) at 13:5-14:13. customers, including video sites MySpace, Grouper, and Microsoft Soapbox, who Hohengarten i1383 & Ex. 349 deployed Audible Magic's fingerprinting (Robinson Dep.) at 61:13-62:7. technology to identify and block

68 unauthorized audio or audiovisual content Hohengarten i1343 & Ex. 309, on their respective sites. MPAA0011721, at MPAAOOll721.

Hohengarten i1143 & Ex. 140, GOOOOI-09612201, at GOOO01- 09612201.

291. Starting early in 2006, copyright owners Hohengarten i1367 & Ex. 333 (Garfield urged Y ouTube to use fingerprinting Dep.) at 14:1-28:12. technology, such as Audible Magic, to stop infringement. Hohengarten i1337 & Ex. 304, AM 002090, at AM 002091.

292.0n October 5,2006, YouTube and Audible Hohengarten i1144 & Ex. 141, Magic signed an agreement for Audible G00001-03427120, at GOOOOl- Magic to provide audio fingerprinting 03427120. services to Y ouTube.

293.YouTube did not begin using Audible Hohengarten i1142 & Ex. 139, Magic's audio fingerprinting service until G00001-01950611, at GOOOOl- February 2007. 01950611.

Hohengarten i1370 & Ex. 336 (Ikezoye Dep.) at 57:6-16.

Hohengarten i1145 & Ex. 142, GOOOOI-02867502, at GOOO01- 02867502 ("Audible Magic - Audio Fingerprinting. . . Platfonn went lìve 2/14").

294.From 2007 through the end of2009, Hohengarten i1374 & Ex. 340 (King Y ouTube used Audible Magic to check 30(b)(6) Dep.) at 96:22-97:3. every video uploaded to the Y ouTube site, but only against a lìmited set of audio and See SUF infra i1i1295-298. audiovisual works specified by Y ouTube.

295.Audible Magic was capable of identifying See SUF infra i1i1296-298. mì1ions of copyrighted works, but YouTube directed Audible Magic to lìmit Hohengaiien i1370 & Ex. 336 (Ikezoye its searches to identifying only specific Dep.) at 33:4-9, 48:18-22. content belonging to content owners who had agreed to licensing and revenue sharing Hohengarten i1141 & Ex. 138, deals with Y ouTube. G00001-02604786, at GOOO01- 02604789-90.

69 Hohengarten i1144 & Ex. 141, G00001-03427120, at GOOOOl- 03427122, G00001-03427124 (final agreement between Y ouTube and Audible Magic for Audible Magic's audio fingerprinting services, defining "Copyrighted Content Database" as consisting "solely of the materials pertaining to those Content Owners designated by fYouTubeJ" (emphasis added)).

Hohengarten i1146 & Ex. 143, G00001-02493328, at GOOOOl- 02493328-29.

Hohengarten i1355 & Ex. 321 (Chastagnol Dep.) at 182: 19-186:19.

Hohengarten i1370 & Ex. 336 (Ikezoye Dep.) at 64:15-66:6,79:4-16,80:15- 81:16,93:20-94:9.

Hohengarten i1146 & Ex. 143, G00001-02493328, at GOOO01- 02493328-29.

Hohengarten i1355 & Ex. 321 (Chastagnol Dep.) at 182:19-186:19.

Hohengarten i1338 & Ex. 305, AMOO 1241, at AMOO 1241-42.

296. Y ouTube also used Audible Magic to create Hohengarten i1339 & Ex. 306, fingerprints of audio and audiovisual works AM000917, at AMOO0917. belonging to content owners who had agreed to lìcensing and revenue sharing Hohengarten i1370 & Ex. 336 (Ikezoye deals with Y ouTube, and then to search for Dep.) at 65:20-66:14. those works on the Y ouTube site, but Y ouTube did not use this abilìty to Hohengarten i13 74 & Ex. 340 (King fingerprint or search for content owned by 30(b)(6) Dep.) at 47:16-50:14. Viacom. Hohengarten i1338 & Ex. 305, GOOOOI-015ll226, at GOOO01- 01511226.

70 Hohengarten i1142 & Ex. 139, G00001-01950611, at GOOO01- 01950613 (noting that YouTube's "( r J eference fingerprint database" was populated only with partner-owned content).

Hohengarten i1361 & Ex. 327 (Drummond Dep.) at 158:12-17, 159: 13-160: 18 (testifying that YouTube would have been willing to use audio fingerprinting on Viacom' s behalf if Viacom was wì1ing to "work with us," defined as "provide (Y ouTube J with (Viacom J content").

Hohengarten i1137 & Ex. 134, G00001-00561601, at GOOOOl- 00561607-08, GOOO01-00561612-15.

Hohengarten i1148 & Ex. 145, GOOOOl-02506828, at GOOO01- 02506828.0003, GOOO01- 02506828.0005.

Hohengarten i1149 & Ex. 146, G00001-01202238, at GOOO01- 01202240-41.

Hohengarten i1375 & Ex. 341 (Kordestani Dep.) at 244: 13-23.

Hohengaiien i1348 & Ex. 314 (Schmidt Dep.) at 156:3-24.

Hohengarten i1346 & Ex. 312 (C. Hurley Dep.) at 271 :17-288:15.

297.YouTube used Audible Magic to block Hohengarten i13 74 & Ex. 340 (King taken-down videos from being re-uploaded 30(b)(6) Dep.) at 67:10-68:15,70:22- to the site, but only 011 behalf of some 78:3,84:21-88:23,89:20-90:9,95:7- content owners who had entered 95:25. agreements with Y ouTube, and not on behalf of content owners who had not, such as Viacom.

71 298.Even after Defendants began using Audible Hohengarten i1201 & Ex. 382 Magic fingerprinting on Y ouTube, they G00001-08050272, at GOOOOl- refused requests by copyright owners to use 08050272. that technology to prevent infringement of any copyright owner's copyrights unless the Hohengarten i1348 & Ex. 315 (Schmidt owner first granted Y ouTube a content Dep.) at 156:3-24. lìcense and revenue sharing deaL. Hohengarten i1346 & Ex. 312 (C. Hurley Dep.) at 271:17-288:15.

299.In a September 2006 lìcensing and revenue- Hohengarten i1191 & Ex. 188, sharing agreement, Y ouTube offered to use G00001-09684752, at GOOOOl- digital fingerprinting to prevent the 09684765-66, GOOOO 1-09684803-05. infringement of copyrighted works owned by Warner Music Inc. Hohengarten i1 40 & Ex. 37, GOOOO 1- 01627276, at GOOOOI-01627276.

300'in a September 2006 lìcensing and revenue- Hohengarten i1191 & Ex. 188, sharing agreement, Y ouTube offered to use G00001-09684752, at GOOO01- metadata tag searching to prevent the 09684805-06. infringement of copyrighted works owned by Warner Music Inc.

301'in an October 2006 licensing and revenue- Hohengarten i1190 & Ex. 187, sharing agreement, Y ouTube offered to use G00001-09684647, at GOOOOl- fingerprinting to prevent the infringement 09684660-61. of copyrighted works owned by CBS Digital Media. Hohengarten i1151 & Ex. 148, GOOOOI-01870875, at GOOOOl- 01870876.

302'in an October 2006 licensing and revenue- Hohengarten i1190 & Ex. 187, sharing agreement, Y ouTube offered to use GOOOO 1-09684647, at GOOOO 1- metadata tag searching to prevent the 09684660. infringement of copyrighted works owned by CBS Digital Media.

303.In negotiations for a lìcensing and revenue- Hohengaiien i1152 & Ex. 149, sharing agreement Y ouTube offered to use GOOOOI-02826036, at GOOOOl- fingerprinting to prevent the infringement 02826039. of copyrighted works owned by Turner Broadcasting Inc. in October 2006.

304'in an October 2006 Memorandum of Hohengarten i1189 & Ex. 186, Understanding, YouTube offered to use GOOOO 1-09684681, at GOOOO 1- fingerprinting to prevent the infringement 09684705-08.

72 of copyrighted works owned by Sony BMG Music Entertainment. Hohengarten i1151 & Ex. 148 G00001-01870875, at GOOO01- 01870879.

305.In an October 2006 Memorandum of Hohengarten i1189 & Ex. 186, Understanding, Y ouTube offered to use GOOOO 1-09684681, at GOOOO 1- metadata tag searching to prevent the 09684705, GOOO01-09684709. infringement of copyrighted works owned by Sony BMG Music Entertainment.

306'in negotiations for a lìcensing and revenue- Hohengarten i1197 & Ex. 373, sharing agreement Y ouTube offered to use G00001-02502815, at GOOOOl- fingerprinting to prevent the infringement 02502819 (deal framework between of copyrighted works owned by The Walt Y ouTube and The Walt Disney Disney Company in December 2006. Company agreeing to provide audio fingerprinting services).

307.In negotiations for lìcensing and revenue- Hohengarten i1271 & Ex. 245, sharing agreements Y ouTube offered to use VIA00727695, at VIA00727696. fingerprinting for Viacom in July 2006 and for Viacom's MTV Networks in February Hohengarten i194 & Ex. 91, GOOOO 1- 2007. 00984825, at GOOO01-00984837.

308'in negotiations for a lìcensing and revenue- Hohengarten i1155 & Ex. 152, sharing agreement Y ouTube offered to use GOOOOOI-02874326, at GOOOO01- fingerprinting to prevent the infringement 02874326. of copyrighted works owned by NBC Universal in February 2007.

309'in negotiations for a lìcensing and revenue- Hohengarten i1156 & Ex. 153, sharing agreement Y ouTube offered to use G00001-02240369, at GOOO01- fingerprinting to prevent the infringement 02240369. of copyrighted works owned by EMI in March 2007. Hohengarten i1157 & Ex. 154, GOOOOI-02524911, at GOOOOl- 02525000.

31 O.In negotiations for a licensing and revenue- Hohengarten i1181 & Ex. 178, sharing agreement Y ouTube offered to use GOOOOI-06147947, at GOOOOl- fingerprinting to prevent the infringement 06147947 (draft agreement between of copyrighted works owned by Universal Y ouTube and Universal Music Group Music in June 2007. Recordings, Inc. dated October 6, 2006).

Hohengarten i1151 & Ex. 148,

73 G00001-01870875, at GOOO01- 01870882.

See also Hohengarten i1158 & Ex. 155, GOOOO 1-02241782, at GOOOO 1- 02241782 (amending October 6,2006 agreement).

311. The October 5, 2006 agreement between Hohengarten i1144 & Ex. 141, Audible Magic and Y ouTube required GOOOOI-03427120, at GOOOOl- YouTube to pay Audible Magic $200,000 03427122, GOOO01-03427126. in service fees for 2007 and $300,000 in service fees for 2008.

312. The cost to Y ouTube of using Audible Hohengarten i1370 & Ex. 336 (Ikezoye Magic's entire reference database of Dep.) at 105:21-106:3. fingerprints of film and TV works would have been approximately twice the amount that Audible Magic was charging Y ouTube each month under the October 5, 2006 contract.

313. Google developed its own audio Hohengarten i1151 & Ex. 156, fingerprinting tool as early as November GOOOO 1-023 5460 1, at GOOOO 1- 2006, but did not start using it on the 02354601. Y ouTube site to prevent infringement of any copyrighted content until Hohengarten i1160 & Ex. 157, approximately February 2008. G00001-09612078, at GOOO01- 09612078.

Hohengarten i1373 & Ex. 339 (King Dep.) at 125:15-126:10.

314.At the first status conference before this Hohengarten i1399 & Ex. 362 (July 27, Court in July 2007, Defendants' counsel 2007 Status Conference Transcript) at announced for the first time that Defendants 15:15-17:7. would implement their own proprietary video fingerprinting technology and would make it available to all copyright holders, not just those who had agreed to lìcensing deals with Defendants.

74 Vi. DEFENDANTS' CONDUCT AS DIRECT INFRINGEMENT AND AS BEYOND STORAGE AT THE DIRECTION OF A USER

.. .,Ù £j T , " H" n. '- y lUo;\J~i TT" 1 "r" ..~'. 315. When a user submits a video for upload, Hohengarten i1356 & Ex. 322 (Do Y ouTube makes one or more exact copies Dep.) at 19:21-20:6. of the video in its original file format (i.e., the format in which it is uploaded by the user).

316. YouTube makes one or more additional Hohengarten i1357 & Ex. 323 (Do copies of every video during the upload 30(b)(6) Dep.) at 85:18-86:10. process in a different encoding scheme and different file fonnat called Flash. Hohengarten i1356 & Ex. 322 (Do Dep.) at 19:21-20:6.

317. Making copies of a video in a different Hohengarten i1356 & Ex. 322 (Do encoding scheme is called "transcoding." Dep.) at 17:4-15.

318.In a July 11,2006 email, YouTube product Hohengarten i1161 & Ex. 158, manager Matthew Liu states that all GOOOO 1-05175716, atGOOOO 1- Y ouTube videos are transcoded for delìvery 05175716. in Flash fonnat.

319. Via delivery in the Flash fonnat of videos Hohengarten i1257 & Ex. 239, to users, Y ouTube ensures that its videos JK00008859, at JK00008859 ("Want to are viewable over the Intemet to most users. convert uploaded A VIs to Flash movies, so it displays nicely everywhere").

Hohengarten i1222 & Ex. 204, JK00009887, at JKOOO09887.

Hohengarten i1356 & Ex. 322 (Do. Dep.) at 18:2-6.

Hohengarten i1162 & Ex. 159, G00001-00889264, at GOOO01- 00889266.

320. The uploading user does not have any Hohengarten i1356 & Ex. 322 (Do

choice whether Y ouTube trans codes the Dep.) at 25:14-27:18. video, or instead stores the video in the See infra SUF i1321.

75 original format chosen by the user.

321.YouTube engineering manager Cuong Do Hohengarten i1356 & Ex. 322 (Do stated in his deposition, "(tJhe system Dep.) at 27:16-18. performed. . . the replìcation as a course of its normal operation, . . . uninstructed by the user."

322.In the past, "for particularly popular videos Hohengarten i1191 & Ex. 188, that are watched very frequently" on GOOOOI-09684752, at GOOO01- Y ouTube, Y ouTube sen( t J "a replica" of the 09684711-12. video "to a third-party content distribution partner to facilitate timely streaming to all Hohengarten i1357 & Ex. 323 (Do users." Currently, YouTube uses some of 30(b)(6) Dep.) at 90:16-92:1. Google's own services to perform that function.

323.YouTube performs videos by streaming Hohengarten i1186 & Ex. 183 them to users' computers. As part of that GOOOOI-00718495, at GOOOOl- process, Y ouTube also distributes a 00718495. complete and durable copy of a video to the computer of any user who views it. Hohengarten i1408.

324.YouTube has contracts with Apple to Hohengarten i1163 & Ex. 160, distribute videos over iPhones and GOOOOI-09684557, at GOOOOl- AppleTV devices. 09684557-79 (Product Integration Agreement between Y ouTube Inc. and Apple Inc.).

Hohengarten i1164 & Ex. 161, GOOOOI-02276277, at GOOO01- 02276277 ("Apple / YouTube Partnership Revenue Opportunity").

Hohengarten i1165 & Ex. 162, GOOOOI-07726987, at GOOOOl- 07726987 (May 30,2007 compilation

of press coverage of the Apple deal).

325. Y ouTube has a contract with Sony to Hohengarten i1166 & Ex. 163, distribute Y ouTube videos over Sony GOOOO 1-02243231, at GOOOO 1- devices. 02243231 (Product Integration Agreement between Sony Electronics, Inc. and Google Inc.).

326. YouTube has a contract with Panasonic to Hohengarten i1168 & Ex. 165, distribute Y ouTube videos over Panasonic GOOOOI-02242506, at GOOOOl-

76 devices. 02242506-23 (Product Integration Agreement between Google Inc. and Panasonic Consumer Electronics Company, Division of Panasonic

Corporation of North America).

327.YouTube has a contract with TiVo to Hohengarten i1l69 & Ex. 166, distribute Y ouTube videos over TiVo G00001-02242907, at GOOOOl- devices. 02242907-24 (Product Integration Agreement between Google Inc. and TiVo Inc.).

328. YouTube has contracts with major cellular Hohengarten i1170 & Ex. 167, telephone companies including AT&T, G00001-02392607, at GOOO01- Verizon Wireless, and Vodafone. 02392607-43 (Content Agreement between Y ouTube, Inc. and Cellco Partnership d/b/a Verizon Wireless).

Hohengarteni1171 & Ex. 168, G00001-06176212, at GOOOOl- 06176212- 24 (Y ouTube Integration Agreement between Google Ireland Limited and Vodafone Group Services Limited).

Hohengarten i1172 & Ex. 169, G00001-06176368, at GOOOOl- 06176368-86 (agreement between Google and AT&T Mobilìty LLC).

Hohengarten i1173 & Ex. 170, G00001-02552363, at GOOO01- 02552363 (press releases for YouTube deals with Verizon Wireless, Vodafone, and Nokia).

329.As part ofYouTube's agreement with Hohengarten i1379 & Ex. 345 (Maxcy Verizon Wireless, Y ouTube provided Dep.) at 219:21-222:13. Verizon with copies of the YouTube videos that Verizon wished to make available on Hohengarten i1391 & Ex. 385 its mobile devices, which consisted solely (Patterson Dep.) at 37:20-38:7. of videos YouTube had selected for prominent placement as featured videos on See also infra SUF i1331. YouTube.

330'in 2007, without any request from the Hohengarten i1356 & Ex. 322 (Do

77 uploading users, Defendants created copies Dep.) at Tr. 215:21-217:25. of all previously uploaded videos in two fonnats other than Flash so that the videos Hohengarten i13 79 & Ex. 345 (Maxcy could be viewed on additional platforms, Dep.) at 215:25-218:13. including Apple devices and non-Apple mobile phones. Hohengarten i117 4 & Ex. 171, GOOOO 1-000 10746, at GOOOO 1- 00010746.

Hohengarten i1391 & Ex. 385 (Patterson Dep.) at 57:18-62:22.

, '1' ~ Ten' ~_ T" r f' , .1 Yuuiuoe;-, T" ., Th" ' L 331. Y ouTube employs "editors" to scour the Hohengarten i1363 & Ex. 329 (Dunton Y ouTube site for interesting videos that Dep.) at 29:23-30:6, 94: 14-1 00:4 Y ouTube on its own initiative then (testifying that she selected videos to "features" with conspicuous positioning on feature on YouTube's home page, to its home page. highlìght "relevance" and "entertaining content" to users).

Hohengarten i1359 & Ex. 325 (Donahue Dep.) at 140:11-25 (testifying that Donahue, Chen, and Dunton selected featured videos to appear on YouTube's homepage).

332.Some of the videos identified by Viacom as Hohengarten i1398 & Ex. 361 infringing Viacom's copyrights were (Defendants' Reponses and Objections selected and promoted by Y ouTube to Plaintiffs' Second Set of employees as featured videos. Interrogatories, Interrogatory No.4) at 10 (identifying two clips in suit that were promoted or featured by YouTube).

333.YouTube gives prominent placement to Hohengarten i1312 & Ex. 284

videos that are most viewed, most (screenshot of you tube. com website frequently tagged as "favorites" by users, or showing prominent placement of currently being watched on the site. "videos being watched right now").

Hohengarten i1356 & Ex. 322 (Do. Dep.) at 112:22-118:20,121 :24-123:16.

78 334.YouTube uses an algorithm that it designed Hohengarten i1346 & Ex. 312 (C. to identify videos that are "related" to a Hurley Dep.) at 173:25-174:23. video that a user watches, and links to videos identified by that tool appear both in Hohengarten i1175 & Ex. 172, a box on the right-hand side of the watch GOOOO 1-00243149, at GOOOO 1- page of the video to which they are related 00243149. (the "related videos" box) and also within the video player after the video that the user Hohengarten i1282 & Ex. 254, watches ends. VIA14375701, at VIA14375701 (screenshot of conclusion of South Park clìp showing other "related" South Park clìps).

Hohengarten i1176 & Ex. 173, G00001-09684201, at G00001- 09684202-05.

335.When a user views an infringing clip from a Hohengarten i1280 & Ex. 252, major media company like Viacom on a VIA14375446, at VIA14375446. YouTube watch page, YouTube's related videos toollìkely will direct the user to Hohengarten i1281 & Ex. 253 other similar infringing videos. VIA14375721, at VIA14375721

Hohengarten i1282 & Ex. 254, VIA14375701, at VIA14375701.

Hohengarten i1283 & Ex. 255, VIA14375674, at VIA14375674.

Hohengarten i1284 & Ex. 256, VIA14375466, at VIA14375466.

Hohengarten i1285 & Ex. 257, VIA14375535, at VIA14375535.

336. of all video views on Hohengarten i1176 & Ex. 173, Y ouTube come from use of the related G00001-09684201, at GOOOOl- videos tool. 09684205.

337. YouTube indexes and categories videos Hohengarten i1393 & Ex. 356 using information supplied by the (Declaration of Steve Chen dated uploading user and provides a search January 5, 2007) at i1i1, 4,5. function so that viewers can find videos using search terms. Defendants' Answer at i1 31.

Hohengarten i1l77 & Ex. 174,

79 G00001-02338330, at GOOO01- 02338330, G00001-02338340-42 .

Hohengarten i1357 & Ex. 323 (Do 30(b)(6) Dep.) at 104:1-17,105:11-19, 111:12-20.

Hohengarten i1401 & Ex. 364 (deposition "cheat sheet" prepared by Do listing data Y ouTube maintains regarding videos).

Hohengarten i1378 & Ex. 344 (Liu Dep.) at 62:21-63:8, 63:22-64:23.

338.As a user types search terms into Hohengarten i13 78 & Ex. 344 (Liu YouTube's search field, YouTube suggests Dep.) at 183:4-9. additional search terms to "help (Y ouTube usersJ more quickly find the videos Hohengarten i1302 & Ex. 274. (they'reJ looking for."

339.YouTube's suggested search terms assist Hohengarten i1294 & Ex. 266, users in locating infringing works by VIA14375228, at VIA14375228. providing variations of the complete name or content owner of a copyrighted work Hohengarten i1295 & Ex. 267, even though the user has not typed the VIA14375363, at VIA14375363. work's or owner's full name. Hohengarten i1296 & Ex. 268, VIA14375413, at VIA14375413.

Hohengarten i1297 & Ex. 269, VIA14375207, at VIA14375207.

340.YouTube also provides many different See supra SUF i1i1261, 334. ways for users to browse through the site.

341. When Y ouTube first instituted "categories" Hohengarten i1178 & Ex. 175, for videos in September 2005, YouTube GOOOO 1-0 1177848, at GOOOO 1- employees reviewed and categorized the 01177848. videos that had been previously uploaded to Y ouTube, without any input from the users Hohengarten i1298 & Ex. 270 who had uploaded those videos. (September 12,2005 YouTube Blog entry). 342. Once YouTube had instituted "categories" Hohengarten i1357 & Ex. 323 (Do for videos, Y ouTube thereafter required 30(b)(6) Dep.) at 117:14-20. users who uploaded videos to choose a

80 "category" for the video, such as "Entertainment" or "Comedy."

343. Y ouTube makes and stores four Hohengarten i1357 & Ex. 323 (Do "thumbnails" from each uploaded video 30(b)(6) Dep.) at 97:20-98:25. without any input from or opportunity to opt out for the uploading user. Hohengarten i1356 & Ex. 322 (Do Dep.) at 38:8-20.

Defendants' Answer at i1 31.

344.Defendants display the "thumbnail images" Hohengarten i1179 & Ex. 176,

of uploaded videos at various places on the G00001-00508644, at GOOOOl- Y ouTube site, including on search results 00508646. pages. Hohengarten i1354 & Ex. 320 (Chang Dep.) at 187:2-18.

345. Y ouTube requires uploading users to accept See supra SUF i1267. Terms of Service providing that the user "grant ( s J Y ouTube a worldwide, non- exclusive, royalty-free, sublìcenseable and transferable lìcense to use, reproduce, distribute, prepare derivative works of, display, and perfonn" each uploaded video.

346. Y ouTube also requires a user to warrant See supra SUF i1267. that he or she owns the copyright for the videos a user uploads, or has permission from the copyright owner to upload the videos.

347.In seeking content partnership lìcenses from Hohengarten i1156 & Ex. 153, content owners, Defendants demanded a G00001-02240369, at GOOO01- release for their prior infringing activities 02240393 (agreement with EMI Music "arising out of or in connection with, the Marketing). unauthorized reformatting, duplìcation, distribution, hosting, performance, Hohengarten i1180 & Ex. 177, transmission or exhibition of' the content G00001-09531942, at GOOO01- owners' intellectual property. 09531954 (agreement with Universal Music Group with similar language).

Hohengarten i1181 & Ex. 178, G00001-06147947, at GOOO01- 06147947 (draft UMG agreement showing that Y ouTube inserted similar language).

81 Respectfully submitted,

By: /s/ Stuart 1. Baskin By: /s/ Paul M. Smith

Stuart J. Baskin (No. SB-9936) Paul M. Smith (No. PS-2362) John Guelì (No. JG-8427) Willìam M. Hohengarten (No. WH-5233) Kirsten Nelson Cunha (No. KN-0283) Scott B. Wilkens (pro hac vice) SHEARMAN & STERLING LLP Matthew S. Hellman (pro hac vice) 599 Lexington Avenue JENNER & BLOCK LLP New York, NY 10022 1099 New York Avenue, NW Telephone: (212) 848-4000 Washington, DC 20001 Facsimile: (212) 848-7179 Telephone: (202) 639-6000 Facsimile: (202) 639-6066

Susan 1. Kohlmann (No. SK-1855) JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 891-1690 Facsimile: (212) 891-1699

82